SZLEO v Minister for Immigration and Citizenship

[2008] FCA 662

FEDERAL COURT OF AUSTRALIA

SZLEO v Minister for Immigration and Citizenship [2008] FCA 662

Migration Act 1958 (Cth) s 424A

SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 considered
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009 considered

SZLEO V MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 263 OF 2008

LOGAN J
7 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 263 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLEO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	7 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The Appellant 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 263 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLEO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE:	7 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The Appellant came to Australia in February 2007.  He is a citizen of the People’s Republic of China.  Some three weeks after his arrival in Australia, also in February 2007, the Appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.  The following month, on 24 March 2007, a delegate of the Minister for Immigration and Citizenship, who is the First Respondent to the present appeal, refused the protection visa application, as was his right under the Migration Act 1958 (Cth) (“Migration Act”).

2. The Appellant sought the review of that decision by the Refugee Review Tribunal (“Tribunal”).  On 19 June 2007, for reasons that it then published, the Tribunal affirmed the decision that the Appellant not be granted a protection visa.  The Appellant’s claim for a protection visa had been based upon a claim of his having a well-founded fear of persecution by virtue of his being a practitioner of Falun Gong.  According to his claim he commenced practising Falun Gong in 1997.  He further claimed that he had received many warnings from the local police in China and from local government authorities with respect to his practice of Falun Gong.  He further claimed that he had been beaten by policemen in 2001.  It was part of his claim that since 2001 he had practised Falun Gong in secret. 

3. The Appellant took advantage of an offer made to him by the Tribunal to be personally present at a hearing of his review application.  At that hearing, with the assistance of an interpreter, he gave oral evidence.  The Tribunal’s reasons disclose that the Appellant’s oral evidence was taken into account by the member constituting the Tribunal, as was a body of general information concerning the practice of Falun Gong, the attitude of the authorities in China to Falun Gong and practices and procedures of Chinese authorities with respect to border and immigration control, especially as they related to the control of persons seeking to leave China.

4. It is evident from the Tribunal’s Reasons that the Tribunal formed the view, having regard to the Appellant’s evidence, that he had negligible knowledge of Falun Gong.  Indeed, the Tribunal went so far as to record that during his evidence he displayed “a complete lack of any knowledge of Falun Gong”.  The Tribunal did not accept the Applicant’s claim that he is, or was, a Falun Gong practitioner.  It particularly made that finding “in light of his inability to demonstrate any knowledge of the five exercises”.  The Tribunal also noted that the Appellant had left China legally and on valid travel documents.  It noted that “independent country information is that any person of interest to the authorities in China would not leave the country on a valid exit document”.  The Tribunal found that the Appellant was of no interest to the authorities in China.  In the result the Tribunal found that a claim for a protection visa had not been established to the Tribunal’s satisfaction. 

5. From that decision the Appellant sought to proceed by way of judicial review to the Federal Magistrates Court.  He advanced three grounds of review before that court.  Those grounds have been repeated as grounds of appeal to this Court.  I infer from that that the nature of his appeal is that the Federal Magistrates Court was in error in not setting aside the Tribunal’s decision on one or more of these grounds.

6. The grounds of review, which have become grounds of appeal, were, and are, as follows: 

   1.We really fear returning to China because I was a Falun Gong practitioner.

   2.We had terrible experience when I was in China. 

   3.The decision of Tribunal is not fair. 

7. The Federal Magistrate considered that the first two of these grounds amounted to nothing more than an impermissible solicitation to merits review.  I agree.  The third ground was addressed by the Federal Magistrate by way of a consideration of whether the proceedings before the Tribunal were tainted by any error of law, unreasonableness or perversity or whether the Tribunal had otherwise erred in its decision or in its procedures in a manner constituting jurisdictional error.

8. That, with respect, was a very generous interpretation for understandably humane reasons of a vaguely stated ground of review.  In the result the Federal Magistrate found, on an examination of the procedures, reasons and decision of the Tribunal, that there was no error of any of these kinds.  Before me the Appellant’s submission, which was concisely put, was, firstly, that he disagreed with the Department, and following some question of clarification by me, that the third ground meant that the decision was not fair because he had not been believed.

9. I do not doubt that the Appellant genuinely disagrees with the view taken by the Department or by the Tribunal.  That does not mean, though, that the Tribunal made any jurisdictional error in reaching the decision it did.  Further, I detected in the Appellant’s submission a view on his part that, in some way, the Tribunal must have been biased because it did not believe him.  There is, though, not a scintilla of evidence which would ground jurisdictional error based on either actual or apprehended bias if that is how one is to view ground three.  This case seems to be one where the Tribunal, for reasons that are clearly given, made a value judgment, based on evidence, that it did not believe the factual foundation of the Appellant’s claim for a protection visa.

10. Like the Federal Magistrate, I can see no error in the Tribunal having reached such a view. Whether or not I would have come to such a view is completely irrelevant. Again, like the Federal Magistrate, I can see no other procedural fairness defect in the course adopted by the Tribunal. Indeed, in so far as one can glean the nature of the hearing from the summary in the reasons, it seems that the Tribunal went beyond the strict requirements of s 424A of the Migration Act as they have been explained by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190, and in that Court’s earlier decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009.

11. In short, then, I do not see any error of law in the decision of the Federal Magistrate.  That means that the appeal must be dismissed. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated:        14 May 2008

Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the Respondents:	Australian Government Solicitor

Date of Hearing:	7 May 2008
Date of Judgment:	7 May 2008