SZLAA v Minister for Immigration and Citizenship

[2008] FCA 651

FEDERAL COURT OF AUSTRALIA

SZLAA v Minister for Immigration and Citizenship [2008] FCA 651

SZLAA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 6 OF 2008

BESANKO J
14 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 6 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLAA
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	14 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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 6 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLAA
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE:	14 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders made by a Federal Magistrate. On 13 December 2007, the Federal Magistrate dismissed an application for judicial review in relation to a decision of the Refugee Review Tribunal (“Tribunal”).

2. The appellant is a citizen of the People’s Republic of China (“China”). He arrived in Australia on 10 September 2006 and he applied to the then Minister for Immigration and Multicultural and Indigenous Affairs for a Protection (Class XA) visa on 25 October 2006. The records of the then Department of Immigration and Multicultural and Indigenous Affairs indicate that the appellant entered Australia lawfully pursuant to a Subclass 456 Business visa issued on 6 September 2006. A delegate of the Minister refused his application for a protection visa on 12 January 2007. The appellant made an application for review by the Tribunal on 8 February 2007.

3. In support of his application, the appellant claimed that he was born in Fujian Province, China, on 13 December 1966. He left school in July 1983 and for about 10 years he worked in food factories. In about 1993 he formed a partnership with another man and they established a food factory in Xiangtan, Hunan Province, China. The appellant claimed that the business grew and that by 2004 it was a substantial business. In about January 2006, the government wished to build a new highway and as part of that project the appellant’s business was confiscated. The appellant and his partner were unable to obtain any compensation for the business. The appellant could not obtain any assistance from the authorities in Xiangtan or from the authorities in Fujian. It seems that as a result, the appellant became involved in open protests against the communist dictatorship. One particular protest was thwarted by the authorities and the appellant was detained overnight. The appellant left China with the help of friends.

4. I turn now to briefly outline the Tribunal’s reasons. The Tribunal member considered the appellant’s claims in detail. He noted that the appellant claimed to have had a “serious adverse history” with the Chinese authorities. The Tribunal member referred to the fact that the Tribunal had sent a letter dated 26 April 2007 to the appellant pursuant to s 424A of the Migration Act 1958 (Cth) (“the Act”). The Tribunal member said that following that letter, the appellant changed his story as to how it was that he was able to leave China on a valid passport with an Australian visa enclosed. The Tribunal member said that he was not satisfied with the appellant’s account of how he left China unhindered despite his claims of “intra-China” persecution. The Tribunal member said that he was not satisfied that the appellant was ever a political protester or ever persecuted for protest activities. The Tribunal member said that he did not believe the appellant’s claims and found that he was not a witness of truth. The Tribunal member said that he could only conclude that “his claims are an elaborate concoction to give verisimilitude to an alleged persecution which never happened”.

5. The Tribunal member put to the appellant that he had applied successfully for an Australian business visa. The appellant responded by saying he never made that application and he claimed that the application was made by his partner to assist in the appellant’s rapid departure from China. The Tribunal member rejected that explanation and said that he found the explanation untenable. The Tribunal member said that he was not satisfied with the apparent contradiction between evidence from the Department that the appellant’s business was a substantial going concern of national prominence and his claim that the business was destroyed by the expropriation of land and demolition of the business premises in 2006. The Tribunal member explained what he meant by that statement: he rejected the appellant’s claim that he was a businessman who was a victim of an expropriation of land which put him in an invidious position where he sought compensation and later engaged in serious dissident behaviour in an attempt to secure that objective. The Tribunal member said that he was not satisfied that the appellant is or was ever persecuted by the Chinese authorities for dissident behaviour such as public protesting. He said that his finding was strengthened by the “unhindered way” the appellant was able to leave China and to secure the grant of an Australian business visa. The Tribunal member was not satisfied that the claims of persecution of the appellant by the Chinese authorities were genuine and “Convention related”. The Tribunal member found that were he to return to China the appellant’s chances of facing any adverse consequences were remote.

6. On his application to the Federal Magistrate for judicial review, the appellant raised six grounds. First, he submitted that the Tribunal failed to make its finding on correct evidence given by him in relation to his departure from China. The Federal Magistrate noted that the Tribunal member did not believe the appellant’s claims and found that he was not a witness of truth. The Tribunal rejected the appellant’s explanation of inconsistencies between the appellant’s application for a business visa, and information provided in support of his application for a protection visa. The Federal Magistrate said that the Tribunal’s findings were open to it on the evidence, and that the appellant’s claim was no more than “a disagreement with findings made by the Tribunal”. In effect, the appellant sought merits review, which the Federal Magistrates Court was not able to undertake.

7. Secondly, the appellant submitted that the Tribunal was biased. The Federal Magistrate noted that the appellant did not file any evidence in support of this allegation. The Federal Magistrate referred to the letter sent to the appellant by the Tribunal under s 424A of the Migration Act and the fact that the appellant had responded to the letter. The Federal Magistrate concluded that the Tribunal’s findings were open to it on the evidence. A fair reading of the Tribunal’s decision did not suggest that the Tribunal approached its task other than with a mind open to persuasion. There was no evidence upon which a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind to bear in determining the application for review.

8. Thirdly, the appellant submitted that the Tribunal misunderstood or misstated the evidence given by him. The Federal Magistrate said that the particulars in support of this ground did “no more than disagree with the findings of the Tribunal”. She concluded that the findings of the Tribunal were open to it and that otherwise, the appellant sought merits review, which the Federal Magistrates Court could not undertake.

9. Fourthly, the appellant submitted that the Tribunal made findings without giving any reasons. The Federal Magistrate rejected that submission and she said that the particulars in support of the submission were “no more than a disagreement with the Tribunal’s adverse credibility findings”. Fifthly, the appellant submitted that the Tribunal had not complied with its obligation under s 424A of the Act. The Federal Magistrate noted that the Tribunal had sent the appellant a letter pursuant to s 424A of the Act and that he had responded to it. The Federal Magistrate found that the Tribunal had complied with its obligations under that section. Sixthly, the appellant complained that his application had not been carefully and fairly assessed by the Tribunal. The Federal Magistrate noted that this ground was a bare assertion of error unsupported by particulars. The Federal Magistrate referred to the Tribunal’s reasons and the procedure it had adopted and said that she found no reason to conclude that the Tribunal had conducted the review other than in a careful and fair manner.

10. In his notice of appeal to this Court the appellant complained of how the Federal Magistrate had dealt with the grounds of his application. There is nothing in the grounds of appeal and there was nothing in the appellant’s oral submissions that causes me to doubt the correctness of the reasons of the Federal Magistrate.

11. The appellant also submitted that the Tribunal should have obtained the Department’s file in relation to his application for a business visa and should have provided particulars of the file to him. In my opinion, there was no substance in this submission. In the letter the Tribunal sent to the appellant pursuant to s 424A of the Act, the appellant is given notice of the essential matters disclosed in the file and the reason those matters might be considered adverse to the appellant. The Tribunal did all that was required of it.

12. All grounds of appeal fail and the appeal must be dismissed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated:        14 May 2008

The Appellant appeared in person.
Counsel for the Respondents:	Ms S Kantaria
Solicitor for the Respondents:	Clayton Utz

Date of Hearing:	12 May 2008
Date of Judgment:	14 May 2008