SZLDU v Minister for Immigration and Citizenship

[2008] FCA 1376

FEDERAL COURT OF AUSTRALIA

SZLDU v Minister for Immigration and Citizenship [2008] FCA 1376

SZLDU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 838 OF 2008

EMMETT J
6 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 838 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLDU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	6 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant 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 838 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLDU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE:	6 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This appeal has been brought from orders of the Federal Magistrates Court made on 15 May 2008.  By those orders, the Federal Magistrates Court dismissed an application by the appellant seeking Constitutional writ relief in respect of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal).  The Tribunal’s decision made on 29 June 2007 and notified to the appellant on 17 July 2007, affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), not to grant a Protection (Class XA) Visa to the appellant. 

2. The appellant is a citizen of the People’s Republic of China.  He arrived in Australia on 22 February 2007.  On 15 March 2007 he applied for a Protection (Class XA) Visa under the Migration Act 1958 (Cth) (the Act).  The Minister’s delegate decided to refuse to grant a visa on 24 March 2007 and the appellant applied to the Tribunal on 21 April 2007 for review of the delegate’s decision.

3. Following the Tribunal’s decision, the appellant commenced a proceeding in the Federal Magistrates Court on 8 August 2007.  Following the orders of the Federal Magistrates Court, the appellant filed a notice of appeal to the Federal Court on 3 June 2008.  The appellant claimed, in his application for a protection visa and in the proceeding before the Tribunal, that he feared persecution in China by reason of his Falun Gong activities.  However, the Tribunal did not find the appellant to be a credible witness.  The Tribunal considered that there were a number of inconsistencies between what the appellant stated in his visa application, his statement to the Tribunal, and what he stated at the hearing before the Tribunal. 

4. In particular, the Tribunal considered that there were significant contradictions between the appellant’s written statement and what he said at the hearing in relation to events that led up to what he claimed was his arrest and detention.  The Tribunal set out the inconsistencies in correspondence addressed to the appellant and invited him to comment on the inconsistencies.  The Tribunal found that the appellant’s story was changed to explain the inconsistencies.  The Tribunal also observed that, at the hearing before it, the appellant confirmed that in Australia he had done nothing in relation to his Falun Gong beliefs.

5. The Tribunal found that the appellant’s home was not raided by the police in February 2004, as he claimed.  It also found that he was not participating in a training session in an underground car park that was raided by the police, as he claimed.  The Tribunal also found that the appellant was not arrested and detained in a local police station as he claimed.  Nor was he detained at a reform centre as he claimed.  The Tribunal found, therefore, that, if the appellant returns to China in the reasonably foreseeable future, he will not practice Falun Gong.  The Tribunal found that there was no plausible evidence before it that the appellant had suffered persecution in China because of any political opinion, membership of a particular social group, religion or any other Convention reason.

6. The grounds of review before the Federal Magistrates Court were generally expressed and were unparticularised, as the primary judge observed.  The grounds were as follows:

   (1)[A] jurisdictional error has [been] made.  [The Tribunal] ignored my evidence.

   (2)Procedural fairness has been denied.  I am Falun Gong practitioner.  I fear to go back.

7. The appellant made no written submissions to the Federal Magistrates Court. The primary judge found that it had not been established that the Tribunal ignored the appellant’s evidence, in the sense that it failed to have regard to any integers of his claims or otherwise fell into jurisdictional error. As her Honour observed, the appellant’s written and oral claims were addressed by the Tribunal, as were his responses to letters sent by the Tribunal pursuant to s 424A of the Act. That material formed the basis for the Tribunal’s credibility findings. Her Honour concluded that no jurisdictional error was established on the basis contended for in the first ground.

8. The second ground was that procedural fairness was denied and that the appellant was a Falun Gong practitioner and feared to return to China. The primary judge observed that, insofar as the appellant sought merits review, that was unavailable in the Federal Magistrates Court. Further, her Honour considered that there was nothing in the material before that court to support any contention that there was a failure to accord the appellant procedural fairness generally or in the sense of a failure to comply with any procedures under the Act.

9. Her Honour considered that no failure to comply with s 424A or lack of procedural fairness was apparent. The primary judge concluded that the Tribunal’s factual findings with respect to the appellant’s credibility were open to it on the material before it and that the circumstances were not such as to come within the notion of unreasonableness. When given an opportunity at the hearing to elaborate on his claim of a lack of procedural fairness, the appellant took issue with the fact that his oral submissions at the hearing before the Tribunal were not accepted. He claimed before the Federal Magistrate’s Court that he tried to submit photographs to the Tribunal and that the Tribunal said that it did not need such evidence.

10. The primary judge observed that the appellant had not tendered a transcript of the Tribunal hearing, although an order had been made at a directions hearing on 30 August 2007 for him to do so no later than 12 October 2007.  However, as the appellant’s submission to the Federal Magistrates Court raised an issue about whether or not he had sought an adjournment of the Tribunal hearing or an opportunity to provide further information and whether that had been considered by the Tribunal, the appellant was given time, after the hearing before the Federal Magistrates Court, to file a transcript of the Tribunal hearing.  The Federal Magistrates Court directed the appellant to file and serve any transcript of the Tribunal hearing no later than 15 February 2008 and stood the matter over for further directions on 26 February 2008.

11. At that time, no transcript had been filed.  However, the appellant was given further time to file a transcript together with written submissions addressing any issue raised by the transcript.  No transcript or written submissions were filed.  The primary judge, therefore, concluded that the appellant had been given a reasonable opportunity to submit further evidence as to the way in which the hearing before the Tribunal had been conducted.  Thus, there was no evidentiary basis in the material before the Federal Magistrates Court in relation to the appellant’s claim made at the bar table as to what had occurred at the Tribunal hearing.

12. The photographs, to which the appellant referred at the hearing before the Federal Magistrates Court, were said to relate to participation in Falun Gong activities in Australia, as well as a certificate of release from re-education through a labour camp.  The primary judge observed that, in its reasons, the Tribunal recorded that, when asked whether he had ever exercised with anyone in Australia or been to a study centre or other Falun Gong organisation, the appellant stated that he was not able to find any Falun Gong organisation.  He confirmed that he had not done anything in relation to his Falun Gong beliefs in Australia.  Further there was no reference to any documentation of the appellant’s release from detention in any of the material that the appellant had previously provided to the Tribunal, nor was there any reference, at the hearing, to any such release from detention.  The primary judge concluded that there was no material before the Federal Magistrates Court to suggest any jurisdictional error on the part of the Tribunal. 

13. In the notice of appeal to the Federal Magistrates Court, the appellant specified the following grounds:

    (1)Refugee Review Tribunal had bias against me and did not make fair decision for my application.

    (2)I clarify all my points at the hearing of the Federal Magistrates Court, but the Judge did not consider my application fairly.  The Judge refused my application on 15 May 2008.  It is not fair.  I am Falun Gong practitioner.  I will be persecuted if I return to China.

    (3)I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court.

14. When the matter was called on for hearing today, the appellant appeared in person without any legal representation.  However, he was assisted by an interpreter, whom he appeared to have no difficulty in understanding.  When invited to make submissions in support of his appeal, the appellant asked whether he could decline to answer.  He said that no-one had believed him, either at the Department, the Tribunal or the Federal Magistrates Court.  He said that he, therefore, did not think he could succeed in his appeal.  He said he refused to make any submissions because no matter what he would say, the Court would not believe in him.  He said that all he would be prepared to say was that he was a refugee and that is the fact. 

15. No error on the part of the Federal Magistrates Court has been demonstrated.  The appeal must be dismissed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:        8 September 2008

The Appellant appeared in person.
Counsel for the First Respondent:	Mr J Mitchell
Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	6 August 2008
Date of Judgment:	6 August 2008