SZKTC v Minister for Immigration and Citizenship

[2007] FCA 1831

FEDERAL COURT OF AUSTRALIA

SZKTC v Minister for Immigration & Citizenship [2007] FCA 1831

Migration Act1958 (Cth) ss 424A, 425

SZKTC v Minister for Immigration [2007] FMCA 1355 considered

SZKTC v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1725 OF 2007

BENNETT J
20 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1725 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKTC
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	20 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the first respondent’s costs.

3.The first respondent has leave to forward to my chambers within seven (7) days any evidence in support of an application for fixed costs.

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 1725 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKTC
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE:	20 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant, a citizen of the People’s Republic of China, claimed to fear persecution as a result of his practice of Falun Gong.  The appellant’s application for a Protection (Class XA) visa was refused.  The appellant applied to the Refugee Review Tribunal for a review of that decision.  The Tribunal was not satisfied that the appellant was a person to whom Australia had protection obligations under the Refugees Convention.  The appellant’s application to the Federal Magistrates Court for review of the Tribunal decision was dismissed by Driver FM (SZKTC v Minister for Immigration [2007] FMCA 1355).

2. In his notice of appeal before this Court the appellant raises two broad grounds:

   1.That the Tribunal failed to carry out its statutory duty.

   2.That the Tribunal failed to explain, in the form of a document, the reason why the Tribunal considered some particulars of the information relevant to the matter.

   FAILURE TO CARRY OUT STATUTORY DUTY

3. No particulars of this ground are given in the notice of appeal and it does not seem to have been raised before Driver FM. From my review of the material, it is apparent that the Tribunal complied with s 425 of the Migration Act1958 (Cth) (‘the Act’). The Tribunal invited the appellant to a hearing, the appellant responded to the invitation, he attended the hearing with an interpreter and his daughter was present as an observer. The appellant gave evidence before the Tribunal, which was noted in the Tribunal’s reasons.

4. The Tribunal’s decision can be divided into two areas of consideration.  It considered the credibility of the appellant’s claim to be a practitioner of Falun Gong.  It also considered other matters of alleged harm raised by the appellant and whether they were Convention related. 

5. Based upon what the appellant told the Tribunal at the hearing and concessions made by the appellant at that hearing, the Tribunal rejected the appellant’s claim to be a Falun Gong practitioner.  That conclusion was based upon the appellant’s lack of knowledge about Falun Gong, his own admission that he did not think that he should be considered a Falun Gong practitioner and his evidence about the practice of Falun Gong by members of his family.  The Tribunal’s conclusion that the appellant was not and had never been a Falun Gong practitioner, or had ever been involved in any Falun Gong activities, was a finding open to the Tribunal, based on the evidence before it and its assessment of the credibility of the appellant.

6. The Tribunal considered the harm suffered by the appellant, as described by him, in connection with the demolition of his family home and the payment that was made to him in relation to that demolition, that resulted in a conflict with the authorities.  The Tribunal also considered the appellant’s claims about what had happened to his son during that conflict.  The Tribunal concluded that any harm suffered by the appellant or any member of his family was not related to a Convention ground. 

7. Although no specific claim seems to have been made by the appellant regarding membership of a particular social group, the Tribunal considered whether any claimed persecution could be for such membership.  The Tribunal was not satisfied that it was.  That conclusion, for which the Tribunal gave reasons, was available to it on the evidence. 

8. The appellant, who appears in person assisted by an interpreter, raised, as the only particular of the alleged breach of statutory duty, that he was not given an opportunity to consider his responses and that the Tribunal rejected his application.  He also asserts that all of his claims were true.  When asked to identify what claim or what part of a claim the Tribunal did not consider, the appellant said that there was nothing, other than the demolition of his house and what had happened to his son.  Those matters were considered by the Tribunal.

9. There is no evidence before the Court to indicate that the appellant was not given an opportunity to present his case to the Tribunal.  The only material available indicates that the hearing took approximately three-quarters of an hour.  I have taken into account the matters raised by the Tribunal and the information as cited in the Tribunal’s reasons.  It cannot be said that three-quarters of an hour is too short a time. 

10. It follows that it is not apparent that the Tribunal failed to comply with its statutory duty and there is no evidence that it did.

    FAILURE TO EXPLAIN REASONS

11. This ground was considered by Driver FM, who noted that he had asked the appellant what information he asserted that the Tribunal failed to invite comment on, pursuant to s 424A of the Act (at [4]). Before his Honour, the appellant identified his own protection visa claims. His Honour concluded that no breach of s 424A was thereby established (at [4]). No error has been shown in that conclusion. The Tribunal’s reasons and conclusions as to the appellant’s credibility were based upon matters told to the Tribunal by the appellant at the hearing. In particular, the Tribunal’s conclusion as to the practice of Falun Gong was based upon questions and answers recorded in the Tribunal’s reasons. That information comes within s 424A(3)(b) of the Act. The Tribunal also had regard to independent country information regarding the Chinese government and legal system. The independent country information related to the appellant’s claims regarding the independence of the judiciary in China. This was in connection with a claim made by the appellant regarding a case that he was pressing in China. It is not apparent from the Tribunal’s reasons that there was additional information upon which it relied or which formed part of its reasons that did not come within either s 424A(3)(a) or s 424A(3)(b) of the Act.

12. It is not clear if there are any other matters on which the appellant is relying in relation to this ground of appeal.  When asked what information he was referring to, the appellant cited “family circumstances” but did not identify anything other than the demolition of his house and what had happened to his son, both of which were matters or information that he gave to the Tribunal. 

    CONCLUSION

13. It follows that the grounds of appeal have not been established.  The appellant has not shown any jurisdictional error on the part of the Tribunal nor error on the part of the Federal Magistrate.  The appeal must be dismissed.

14. The appellant is to pay the first respondent’s costs.  The first respondent has leave to forward to my chambers within seven days any evidence in support of an application for fixed costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:        26 November 2007

The Appellant was self represented
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	20 November 2007
Date of Judgment:	20 November 2007