SZLCD v Minister for Immigration and Citizenship

[2008] FCA 1171

FEDERAL COURT OF AUSTRALIA

SZLCD v Minister for Immigration and Citizenship [2008] FCA 1171

SZLCD and SZLCE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 684 OF 2008

EMMETT J 
5 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 684 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZLCD First Appellant
SZLCE Second Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	5 AUGUST 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 684 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZLCD First Appellant
SZLCE Second Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	EMMETT J
DATE:	5 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me an appeal from orders made by the Federal Magistrates Court, on 2 May 2008, that an application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal), be dismissed.  The decision of the Tribunal was made on 20 June 2007.  The appellants are citizens of the Peoples Republic of China.  They arrived in Australia on 14 November 2006 and applied for Protection (Class XA) Visas on 21 November 2006.  A delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), refused to grant the visas on 14 February 2007.

2. On 16 March 2007, the appellants applied to the Tribunal for a review of the delegate’s decision.  The Tribunal notified the appellants of its decision on 10 July 2007, when what purported to be a copy of the decision record of the Tribunal was provided to the appellants.  However, page 2 of the Tribunal’s reasons was omitted from the copy that was provided to the appellants.  On 24 July 2007 the appellants commenced a proceeding in the Federal Magistrates Court, seeking Constitutional writ relief in respect of the Tribunal’s decision.  The grounds on which relief was sought were as follows:

   1.The decision record from the Tribunal is incomplete.  Pages 1 and 2 are missing.

   2.The reasons of the Tribunal in refusing to grant me the visa are not clear as the decision record is incomplete.

   3.The Tribunal selectively used the evidence I provided in my statements and at the hearing.  As a result it did not properly consider my claims and afford me procedural fairness.

3. After a hearing on 12 March 2008, the Federal Magistrates Court dismissed the proceeding for reasons delivered on 2 May 2008.  On 14 May 2008 the appellants filed a notice of appeal to the Federal Court.  The grounds of appeal in the notice of appeal are as follows:

   1.The RRT failed to consider my claims properly.

   2.The RRT mixed up my answers on several occasions.

   3.The RRT used assumptions in deciding my application.

   No further particulars of the grounds of appeal were provided.  Although the appellants were directed to file written submissions, no written submissions were filed. 

4. When the appeal was called on for hearing today, the appellants appeared without legal representation although they were assisted by an interpreter.  When invited to make submissions in support of the appeal, the first appellant stated that, at the hearing before the Tribunal, they had not been familiar with the Australian system and did not understand how the democratic system operated.  He also said that he was afraid that he might be punished for bringing his application, as might have been the case in a corresponding proceeding in China.  The first appellant asserted that the Tribunal did not properly assess their application.  When asked to elaborate on that assertion, he said that the Tribunal did not believe him.  Clearly enough, the grounds of appeal do not refer to any error on the part of the Federal Magistrates Court.  Having regard to the fact that the appellants appear without legal representation, I am disposed to treat the notice of appeal as an assertion that the Federal Magistrates Court erred in failing to find jurisdictional error on the bases that were before the Federal Magistrates Court. 

5. Before the Tribunal, the first appellant claimed that he was a Falun Gong practitioner, and that he had been persecuted, detained and tortured in China for holding his beliefs as a Falun Gong practitioner.  He claimed that he continues to hold those beliefs.  The Tribunal found that the first appellant had such a paucity of knowledge of essential Falun Gong beliefs, practice and history that it was not satisfied that the first appellant is really a genuine practitioner, as he claimed.  The Tribunal found that, since the first appellant was unable to establish his claims to be a genuine Falun Gong practitioner, the consequence was that the various claims he had made about having been a victim of persecution, by such means as adverse surveillance and investigation of his life, detention and torture, were also not plausible.  The Tribunal found that those claims had been fabricated to assist the application for the protection visa. 

6. The Tribunal therefore concluded that the first appellant did not have a well founded fear of persecution by the authorities in China on account of Falun Gong practice.  The Tribunal observed that the first appellant was of no adverse interest to the Chinese authorities when leaving China.  The Tribunal found that his exit from China was unhindered and considered that his explanation for such an unhindered exit was not satisfactory.  When weighed against the Tribunal’s other findings about the first appellant’s beliefs, the Tribunal found that the chance of the first appellant’s being of adverse interest to the Chinese authorities, were he to return to China in the future, was remote.

7. The primary judge dealt carefully with each of the grounds of review in the application to the Federal Magistrates Court.  Her Honour dealt with grounds 1 and 2 together, since they are clearly related.  On 21 August 2007, the Federal Magistrates Court gave directions under which the appellants had the opportunity to file an amended application on or before 16 October 2007.  At that stage, the appellants had been furnished with the incomplete copy of the Tribunal’s decision record.  However, on 23 August 2007, the Tribunal forwarded a complete sealed copy of its decision record to the appellants. 

8. The primary judge observed that, while that complete copy was provided outside the time prescribed by section 430B(6) of the Migration Act 1958 (Cth), her Honour considered that the appellants were not deprived of a reasonable opportunity to raise any ground on which they wished to rely, based on the material contained in the omitted page 2 of the decision record. Her Honour concluded, therefore, that there was no procedural unfairness by reason of the omission of page 2 from the copy of the decision record provided to the appellants on 10 July 2007. Her Honour therefore rejected those grounds.

9. In relation to ground 3, the primary judge observed that the appellants provided no particulars as to how or in what respects the Tribunal selectively used the evidence he provided in his statements and at the hearing.  Her Honour observed that the Tribunal is entitled to accord what weight it determines to any of the evidence and material before it.  That is ultimately a factual matter for the Tribunal, which is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.  Her Honour was satisfied that the Tribunal complied with the statutory regime in according the appellants procedural fairness in the making of its decision.  Her Honour was satisfied that the Tribunal performed the task required of it in accordance with law.  Accordingly, her Honour rejected ground 3.

10. As I have said, the notice of appeal does not point to any error on the part of the Federal Magistrates Court.  Further, nothing has been said in support of the asserted grounds of appeal.  There was no error on the part of the Federal Magistrates Court.  The appeal must be dismissed.  The appellants must pay the Minister’s costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:        10 September 2008

The Appellants appeared in person.
Counsel for the First Respondent:	Mr A Markus (solicitor)
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	5 August 2008
Date of Judgment:	5 August 2008