SZKSR v Minister for Immigration and Citizenship

[2008] FCA 695

FEDERAL COURT OF AUSTRALIA

SZKSR v Minister for Immigration and Citizenship [2008] FCA 695

SZKSR and SZCLB v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2531 of 2007

GOLDBERG J
7 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2531 of 2007

ON APPEAL FROM A JUDGMENT OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKSR
First Appellant

SZCLB
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

GOLDBERG J

DATE OF ORDER:

7 MAY 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.        The appellants pay the first respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2531 of 2007

ON APPEAL FROM A JUDGMENT OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKSR
First Appellant

SZCLB
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GOLDBERG J
DATE:	7 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The matter before the Court is an appeal against a judgment of a Federal Magistrate on 7 November 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 10 April 2007 and handed down on 1 May 2007.  The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Citizenship (“the Minister”) to refuse to grant Protection (Class XA) Visas to the appellants.  The second appellant is the son of the first appellant who is his mother.  The second appellant’s application for a visa is as a member of the first appellant’s family unit.

2. The appellants are citizens of the People’s Republic of China.  The first appellant (who I will refer to as “the appellant” in these reasons) arrived in Australia on 3 August 2006 on a visitor visa permitting her to remain in Australia until 17 August 2006.  The appellant had left China legally and did not have any difficulties in obtaining a passport.  On 16 August 2006 the appellant applied for a Protection (Class XA) Visa.  A delegate of the Minister refused the application on 14 December 2006.  On 7 February 2007 the appellant filed an application with the Tribunal for review of the delegate’s decision.  The application for review was in respect of herself and her son.  The Tribunal held a hearing on 26 March 2007 which the appellant attended. 

3. In her application for a Protection (Class XA) Visa the appellant claimed that she had left China because she was warned and harassed due to her association with Falun Gong members.  She claimed that she had been taken in for questioning by the Public Security Bureau about her activities with Falun Gong. 

4. On 21 February 2007 the Tribunal sent the appellant an invitation to a hearing letter, a request to provide further information and a letter in accordance with s 424A of the Migration Act 1958 (Cth) (“the Act”). At the hearing before the Tribunal both appellants gave evidence. The appellant said that in 2004 she had participated in a protest about a giant corporation taking land. The appellant said she participated in further land campaigns in 2005.

5. The appellant claimed that she was also accused of being a member of Falun Gong and feared because of her land protests and for being involved with Falun Gong.  She claimed that she had been detained on a number of occasions in relation to the land protests.  She also claimed that she had been detained in 2006 for being involved with Falun Gong.  She said that she had learnt about Falun Gong in China and she practised it regularly in China and in Australia.

6. The Tribunal did not find the appellant to be a witness of credit and noted that her evidence changed during the course of the hearing.  The Tribunal said that the appellant told it that she knew very little about Falun Gong.  The Tribunal found her lack of knowledge of the principles and meaning of Falun Gong and her inability to name the exercises to be highly inconsistent with her claim to be a Falun Gong practitioner.  The Tribunal did not accept that the appellant was a Falun Gong practitioner in China or had been a practitioner in Australia.

7. The Tribunal did not accept that the appellant had, or was perceived to have had, any association with Falun Gong or had suffered serious harm in China as a result of being a Falun Gong practitioner or because of her association with Falun Gong.

8. The Tribunal did not accept the appellant’s version of her detention due to protests over land deals.  The Tribunal found that the appellant was not detained by the authorities in relation to a land sale and that the appellant was not in any danger from the authorities if she returned to China now or in the foreseeable future.  The Tribunal found that if the appellant was of any interest to the authorities she would not have been able to leave China legally in 2006. 

9. Before the Federal Magistrate the appellant relied upon two grounds for review:

   “1.The Tribunal had biased against me and made a decision on my application based [sic] the officer’s assumption.  The decision was biased. 

   2.The Tribunal failed to consider my application in accordance with section 424A of the Migration Act 1958 because the Tribunal section 424 letter did not confirm with the requirements of section 424A.”

10. At the hearing before the Federal Magistrate, the appellant raised a number of additional issues which had not been raised in her application for review.  These additional issues were summarised by the Federal Magistrate as follows:

    “a)the Tribunal did not provide enough reasons or evidence and “just dismissed my case”; 

    b)        the Tribunal did not exercise correct procedure;

    c) the Tribunal did not apply s.91R of the Act correctly;

    d)the Tribunal did not consider my information and evidence;

    e)the Tribunal did not give adequate reasons for rejecting my application;

    f)the Tribunal did not evaluate the situation that if I returned to my home country I would be persecuted;

    g)the Tribunal found that I was not a Falun Gong practitioner “without making reference to the evidence”;

    h)        the decision was based on conjecture;

    i)the Tribunal did not consider whether I would be persecuted in China by reason of my practice of Falun Gong while in Australia; and

    j)the Tribunal did not consider my reply to its s.424A letter and simply rejected my application.”

11. The Federal Magistrate considered the two grounds for review and the additional issues raised by the appellant in turn.

12. The Federal Magistrate noted that although the appellant had submitted that the Tribunal had been prejudiced against her and that she had raised the issue of bias, she had not particularised her allegation.  The Federal Magistrate considered the Tribunal’s reasons and was satisfied that they did not disclose that the Tribunal had approached its review with a closed mind.  He therefore found that the allegation of actual bias was not made out.  In my opinion, the conclusion of the Federal Magistrate was correct.  There was no material before his Honour, nor was there any material before me, which would warrant a conclusion that the Tribunal was biased against the appellant.  Nor was there any evidence before the Federal Magistrate upon which a claim of apprehended bias could be made out. 

13. In relation to the ground of review that the Tribunal had not complied with s 424A of the Act, the Federal Magistrate noted that, with one exception, the information relied upon by the Tribunal in reaching its decision was information which the appellant had supplied at the Tribunal hearing. Accordingly, the Federal Magistrate found that such information fell within the exception in s 424A(3)(b) of the Act and that the Tribunal was not obliged to comply with s 424A(1).

14. The one exception to which the Federal Magistrate referred was in relation to the information concerning the appellant’s ability to leave China. This had been specifically raised by the Tribunal in its letter sent pursuant to s 424A. It followed, said the Federal Magistrate, that the Tribunal had discharged its obligations under s 424A in relation to the fact that the appellant left China legally and did not have any difficulties obtaining a passport. In my opinion, the Federal Magistrate committed no error of law, nor did he commit any jurisdictional error in reaching his conclusion.

15. The Federal Magistrate rejected the appellant’s claim that the Tribunal did not provide enough reasons or evidence and “just dismissed” her case.  He noted that a consideration of the Tribunal’s decision showed that the Tribunal referred to the evidence which was the basis of its decision that it was not satisfied that the appellant was a person to whom Australia had protection obligations.  He noted that the Tribunal was not required to do more than identify the evidence which grounded its findings on material questions of fact and that this was what the Tribunal had done.  In this respect the Federal Magistrate committed no error.

16. The Federal Magistrate rejected the ground that the Tribunal did not exercise correct procedure as it had not been particularised and only the bare assertion of the ground had been made.  He found that there was no jurisdictional error demonstrated in this respect and in my opinion he was bound to reach that conclusion. 

17. The Federal Magistrate rejected the ground that the Tribunal did not apply s 91R of the Act correctly then found correctly, in my view, that there was no requirement for the Tribunal to consider the provisions of s 91R as the Tribunal had found that the appellant did not have a well‑founded fear of persecution for a reason under the United Nations Convention Relating to the Status of Refugees, opened for signature 28 July 1951,189 UNTS 137 (entered into force 22 April 1954) were she to return to China. The Federal Magistrate found that because the Tribunal rejected the appellant’s claims to practise Falun Gong in Australia there was no need to address s 91R.

18. The Federal Magistrate rejected the ground that the Tribunal did not consider the appellant’s information and evidence and did not give adequate reasons for rejecting her application.  He was satisfied that the Tribunal’s decision set out the information provided by the appellant and discussed those elements of the evidence upon which it based its decision.  In this respect the Federal Magistrate committed no error.

19. The Federal Magistrate rejected the ground that the Tribunal did not evaluate the situation that if the appellant returned to China she would be persecuted.  The Federal Magistrate found, correctly, that the Tribunal did evaluate the likelihood of the appellant being persecuted if she returned to China.  As the Federal Magistrate pointed out, the Tribunal did not accept that the appellant had, or had been perceived to have had, any association with Falun Gong.  The Tribunal found that the appellant had not been detained in relation to her claim about the land protest.  The Tribunal did consider whether the appellant would be persecuted because of this matter if she returned to China but concluded that she would not be persecuted.  In this respect the Federal Magistrate committed no error.

20. The Federal Magistrate rejected the ground that the Tribunal found that the appellant was not a Falun Gong practitioner without making reference to the evidence as I have noted earlier.  The Federal Magistrate observed, correctly that the Tribunal’s decision showed that it had referred to the evidence which was the basis of its decision. 

21. The Federal Magistrate rejected the ground that the Tribunal’s decision was based on conjecture.  He concluded correctly that the decision was the result of a logical and a reasonable consideration of the evidence before the court. 

22. The Federal Magistrate rejected the ground that the Tribunal did not consider whether the appellant would be persecuted in China by reason of her practise of Falun Gong while in Australia.  The Federal Magistrate found that the Tribunal did not accept that the appellant was a Falun Gong practitioner in Australia.  In such circumstances it was not necessary for the Tribunal to consider whether the appellant would be persecuted in China by reason of any practice of Falun Gong while in Australia. 

23. The Federal Magistrate rejected the ground that the Tribunal did not consider the appellant’s reply to its s 424A letter. The Federal Magistrate found that the appellant had not demonstrated that the letter sent by the Tribunal failed to comply with the requirements of s 424A of the Act. In this respect the Federal Magistrate committed no error.

24. In her notice of appeal to this Court the appellant relied upon the following grounds:

    “1.      The Tribunal had bias against me and did not believe my claims.

    2.       The Tribunal’s decision was not made based on materials.

    3.The Tribunal referred to irrelevant independent information for the consideration of my application.

    4.The Tribunal’s s 424 letter did not conform with the requirements of s 4242A.”

25. The notice of appeal does not raise any grounds of appeal, or any grounds of error, in relation to the decision, reasons and judgment of the Federal Magistrate.  This Court does not sit as a court to review the decision of the Tribunal.  Rather, this Court sits as an appellate court to determine whether there is any error, and in the particular circumstances of this case, jurisdictional error, in the reasons and judgment of the court from which this appeal is brought.  It is not for this Court to reconsider the decision of the Tribunal.  In order for the appellants to succeed, they must demonstrate that the judgment of the Federal Magistrates Court is shown to be attended with error. 

26. However, I am concerned to deal with substance of the appeal rather than the form of it and I approach the grounds set out in the notice of appeal on the basis that what, in substance, the appellants are saying is that the Federal Magistrate should have found that the four grounds set out in the notice of appeal were established. 

27. Approaching this matter on this basis I am satisfied that none of the grounds set out in the notice of appeal are made out.  There was no material before the Federal Magistrate which warranted the finding that the Tribunal had bias against the appellant.  The claim of bias was not particularised in any way and the Federal Magistrate was bound to dismiss that ground.  The fact the Tribunal did not believe the appellant’s claims is not a proper ground of appeal.  It invites a reconsideration of the merits of the application before the Tribunal and neither the Federal Magistrates Court nor this Court is able to revisit the merits of the appellants’ claims in the absence of jurisdictional error.  Even then the Court does not revisit the merits of the claims but if jurisdictional error is shown it remits the matter to the Federal Magistrates Court for further consideration.

28. There is no substance in the claim that the Tribunal’s decision was not made based on material.  It is apparent from a reading of the Federal Magistrate’s judgment and also the decision of the Tribunal that the Tribunal’s decision was based on information supplied by the appellants and material otherwise available to the Tribunal. 

29. There is no basis for the claim that the Tribunal referred to irrelevant independent information in considering the appellant’s application.  Such independent information as it considered was relevant to the claims made by the appellant and to the manner in which she was able to depart from China. 

30. The Tribunal’s s 424 letter did conform with the requirements of s 424A of the Act. It set out the information that the Tribunal considered would form part of the reason for its decision and it outlined the relevance of that information to the review.

31. At the hearing of the appeal before me the appellants submitted that the Tribunal did not consider their case with proper reasoning. As I have already pointed out the Tribunal set out detailed reasoning which was in accordance with proper principles in reaching its decision. It was also said this morning by the appellant that the Tribunal did not consider her case in accordance with s 91R of the Act. However, in response to that I would observe that the Tribunal found that the appellant had not suffered serious harm and did not accept that she was a Falun Gong practitioner. In those circumstances there was no further scope for the application of s 91R.

32. I have already dealt with the ground raised that the Tribunal was biased, which was also repeated this morning, and I turn to a further submission made by the appellant that the Tribunal did not ask her to respond to independent data and then refused her application.  It is apparent on a fair reading of the decision of the Tribunal that it put independent country information to her and gave her the opportunity to respond to that information.  The reasons of the Tribunal show that the appellant did respond. 

33. I should also point out that s 424A(1) does not apply to information that is not specifically about the appellant and only relates to a class of person of which the appellant is a member. In those circumstances there was no breach of s 424A or s 5 of the Act by the Tribunal.

34. I am therefore satisfied that there is no error, and in particular, no jurisdictional error to be found in the reasons of the Federal Magistrate.  For the sake of completeness, I find that there is no error, and in particular, no jurisdictional error discernible in the reasons of the Tribunal.  In those circumstances the appeal should be dismissed and the appellants pay the first respondent’s costs of the appeal. 

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:
Dated:       19 May 2008

Counsel for the Appellants:	The appellants appeared in person
Counsel for the Respondents:	James Mitchell
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	7 May 2008
Date of Judgment:	7 May 2008