SZLBS v Minister for Immigration and Citizenship

[2008] FCA 619

FEDERAL COURT OF AUSTRALIA

SZLBS v Minister for Immigration and Citizenship [2008] FCA 619

Migration Act 1958 (Cth) s 424A

SZLBS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 216 OF 2008

LOGAN J
5 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 216 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLBS
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	5 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The Appellant is to pay the First Respondent’s costs of and incidental to the appeal to be taxed.

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 216 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLBS
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE:	5 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The Appellant is a Chinese citizen.  She came to Australia in January last year.  On 2 February 2007, she lodged an application for what is known as a protection visa with the Australian immigration authorities.  That application was not successful.  A delegate of the Minister for Immigration and Citizenship refused the protection visa application on 24 February 2007. 

2. The following month, as permitted by the Migration Act 1958 (Cth) (“Migration Act”), the Appellant sought the review of the Minister’s delegate’s decision by the Refugee Review Tribunal (“Tribunal”). That Tribunal is constituted in a way which permits the Tribunal to stand in place of the Minister or his delegates. Thus the Tribunal is empowered to consider afresh and for itself the merits of a protection visa application.

3. As it happens, on this particular application, the Tribunal decided to affirm the decision made by the Minister’s delegate not to grant a protection visa application.  When one reads the Tribunal’s reasons, it is apparent that the Tribunal did this for a combination of factors, which included the Tribunal’s non acceptance of the evidence which the Appellant gave before the Tribunal concerning her claimed membership of Falun Gong.  It is also apparent that the Tribunal relied upon Australian government information of a general nature concerning the practice of the Chinese government in relation to watch list both for domestic and international movements of its citizens.

4. The Tribunal did so against the background of accepting that membership of the Falun Gong movement could, in a particular case, found a valid case for satisfaction of the criteria relevant to the grant of a protection visa.  It just so happened that in this case, the Tribunal was not satisfied, having regard particularly to the two matters I have mentioned, that the Appellant met the criteria for a protection visa. 

5. As was her right, the Appellant sought to challenge the Tribunal’s decision in the Federal Magistrates Court.  Under the Migration Act the nature of that challenge is that of an application for judicial review.  There is a clear distinction between the role of the court on judicial review and the role of the Tribunal in reviewing for itself on the merits a decision made by a Minister’s delegate.

6. It is not for a Federal Magistrate to make a decision on the merits of a protection visa application, but rather, by reference to the grounds of alleged legal error, to decide whether or not the Tribunal decision was flawed by error of law.  In this particular case the Magistrate concluded that the errors of law advanced by the Appellant were not made out. 

7. In this Court, the Appellant has essentially repeated in her notice of appeal the grounds of alleged legal error that were advanced before the Federal Magistrates Court.  The role of this Court is to decide whether the Federal Magistrates Court was in some way, as particularised in a notice of appeal, in error.  Once again it is not for this Court to make any decision on the merits of a claim for a protection visa.

8. The nature of the notice of appeal to this Court is such that it is to be regarded as the advancing of a case that the Federal Magistrate was in error in not setting aside the Tribunal’s decision for one or more of the grounds that were advanced before the Federal Magistrate and which have been repeated here.  The Appellant did not elaborate by way of oral submission on her notice of appeal, even after having had the benefit of having translated for her the Minister’s response submission to the grounds in her notice of appeal.  I propose to deal with each of the grounds seriatim (which is separately).

   BREACH OF S 424A

9. Section 424A of the Migration Act is a section directed towards the end of ensuring that a person who has an application before the Tribunal has an opportunity to know in advance individually specific and potentially adverse information. The Appellant has not particularised just how the Federal Magistrate was in error in finding that there had been no breach of s 424A by the Tribunal. The Magistrate had the same burden in terms of an absence of particularity. The approach of the Magistrate in those circumstances was to examine the nature of the material that proved critical to the Tribunal’s decision.

10. That consisted of the Appellant’s oral evidence, her passport which she had provided at the Tribunal hearing and country information of a general nature, concerning the practices of the Chinese authorities in relation to watch lists, as I have mentioned. The Magistrate’s conclusion was that information of this kind fell within the exceptions to the disclosure obligation, see ss 424A(3)(b) and 424A(3)(a) of the Migration Act.  The Magistrate’s conclusion that this material fell within these exceptions seems to me to be correct.

    FAILURE TO CONSIDER CLAIMS

11. Once again there is an absence of particularity as to how the Magistrate was in error in dismissing a ground that the Tribunal had failed to consider the Appellant’s claim for a protection visa.  When one reads the Tribunal’s reasons it is quite apparent that the Tribunal, as I have mentioned, accepted that it was possible in a particular case, for Falun Gong membership to engage with the satisfaction of criteria needed for the grant of a protection visa.  The Tribunal sets out at some length the history of the Falun Gong movement and its being banned in 1999 by the authorities within the People’s Republic of China.

12. Having done this, the Tribunal then proceeds to assess, on their individually specific merits, the bases of the Appellant’s claim.  It just so happens that the Tribunal did not accept the individual claim advanced by the Appellant.  Matters of the weight to give to the Appellant’s evidence supporting her application and credibility, were par excellence for the Tribunal to decide. 

13. It seems to me that the Tribunal was perfectly entitled, in the sense of being reasonably entitled, to reach the views that it so obviously did from its reasons.  In turn, I discern no error on the part of the Federal Magistrate in so regarding the Tribunal’s approach to the consideration of the visa application and the contention that the tribunal had failed to consider her claims.

    FAILURE TO ASSESS THE CHANCE OF PERSECUTION

14. Once again, this particular aspect of the challenge is, in effect, a replication of the challenge made before the Federal Magistrate.  Once again, in essence for the same reasons that I have given in respect of the allegation that the tribunal failed to consider the protection visa claim, there is no error that I discern in the Magistrate’s conclusion that there was no substance in the ground that the Tribunal had failed to assess the chance of persecution.  To the contrary, it seems to me that the Tribunal expressly did consider whether, in the Appellant’s particular circumstances, it ought to be satisfied that there was a real chance of persecution.  It just so happens that in this case the Tribunal was not so satisfied. 

15. One of the bases upon which it is evident that the Tribunal’s lack of satisfaction transpired, was the country information of a general nature which the Tribunal had.  This is the reason as advanced in the notice of appeal in respect of the failure to consider the claim that the Tribunal acted on hearsay information.  It is true that the general country information has the character of hearsay.  The Tribunal is not a court.  It is entitled to act on hearsay information.  The weight to give to information of that character and whether indeed to regard it as credible at all are matters for the Tribunal.

16. That same comment applies insofar as hearsay information provided a role in informing the Tribunal as to whether to be satisfied that the Appellant had a real chance of persecution if she were returned to the People’s Republic of China. 

17. In short then, the appeal does not, in my opinion, have any merit at all.  It must be dismissed.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated:        12 May 2008

Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the Respondents:	DLA Phillips Fox

Date of Hearing:	5 May 2008
Date of Judgment:	5 May 2008