SZLFP v Minister for Immigration and Citizenship
[2008] FCA 1303
•29 August 2008
FEDERAL COURT OF AUSTRALIA
SZLFP v Minister for Immigration and Citizenship [2008] FCA 1303
Migration Act1958 (Cth)
SZBEL v Minister for Immigration & Multicultural Affairs & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Re Refugee Review Tribunal: Ex Parte H (2001) 179 ALR 425; [2001] HCA 28
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004] HCA 32
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361SZLFP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1033 OF 2008
REEVES J
29 AUGUST 2008
DARWIN
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1033 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZLFP
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
REEVES
DATE OF ORDER:
29 AUGUST 2008
WHERE MADE:
DARWIN
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 1033 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZLFP
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
REEVES
DATE:
29 AUGUST 2008
PLACE:
DARWIN
REASONS FOR JUDGMENT
INTRODUCTION
This is an appeal against a judgment of Federal Magistrate Barnes delivered on 19 June 2008, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’). The Tribunal’s decision was handed down on 31 July 2007 and affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.
BACKGROUND – SUMMARY OF FACTS
The appellant is a citizen of the People’s Republic of China (‘China’) who arrived in Australia on a business visa on 23 January 2007. The appellant lodged an application for a protection visa one month later, on 23 February 2007. A delegate of the first respondent refused that application on 24 March 2007 and on 26 April 2007, the appellant applied to the Tribunal for a review of that decision.
In his visa application the appellant stated that he worked at a spare parts company from 1972 to 2000 and then at a food company as an engineer from 2003 to 2007. In a statement lodged with that visa application, the appellant set out the basis of his claims to fear persecution in China, due to his practice of Falun Gong, as follows:
‘I first heard about Falun Gong in 1996 from my auntie who was a very devoted Falun Gong member then. I did not start to learn it until 1998 when my colleague introduced the full details about Falun Gong to me after work. We both worked as Cadres for a Machinery Spare Parts Company, he was a senior Falun Gong member and his duty was to enlarge the team of Falun Gong. One day after work, he brought some books about Falun Gong and spent several nights explaining Falun Gong to me afterwards. I had enough knowledge of Falun Gong and I started to practi[s]e it from end of 1998. Sometimes, I practice Falun Gong with my auntie too. I practiced Falun Gong for my health as well as my belief. My life became happier and I could not see anything wrong with Falungong [sic]. I was having a happy life at that period of time. In about August 1999, the Chinese government cracked down Falun Gong, all of a sudden we were told that we would not allow practicing Falun Gong any more. My auntie and I went to Beijing together, we wanted to talk to the government officers, and we wanted to support Falun Gong. We were threatened, and we were sent for classes. In two months, I was detained twice by police for interrogation, I suffered persecution from the Chinese government during that period of time, and I lost my job in 2000 because of that. I had to practice Falun Gong underground, and could not have a normal life in China. In October 2006, police accused me of attending illegal Falun Gong activities and being a leader of the illegal organization, I paid RMB70,000 to obtain my passport and for my release from the police. I could finally come to Australia for protection. Here, I can practice Falun Gong freely; I can enjoy the freedom of belief. I sincerely hope that Australian government can protect me. I can not return to China’.
The appellant attended a hearing before the Tribunal on 4 July 2007. The Tribunal’s Decision Record confirms that at that hearing, the appellant elaborated on the claims above. As well, the appellant presented a passport in his own name, a document entitled ‘record of detention’ and dated 2006 and an example of the type of Falun Gong leaflet which he claimed led to his arrest. The Tribunal’s Decision Record also confirms that it put to the appellant that “... it was very easy to obtain fraudulent documentation in China, and the [appellant] should be aware that the Tribunal might not necessarily accept [the record of detention] as proof that he had been detained”. The Tribunal also recorded that the ‘record of detention’ document had not been mentioned by the appellant at any time prior to the hearing, and that, in any case, that document was not consistent with the appellant’s own evidence to the Tribunal. During the hearing, the Tribunal examined the appellant about his knowledge of Falun Gong and found that his responses were, at times, anomalous with ‘official Falun Gong literature’.
THE TRIBUNAL’S DECISION
In her decision, Federal Magistrate Barnes set out a summary of the Tribunal’s reasons for rejecting the appellant’s claims and affirming the delegate’s decision (at [6] to [13] of [2008] FMCA 864). That summary is further summarised below:
·The contents of the ‘record of detention’ document produced by the appellant “did not match his account of events”. Specifically, he had claimed that he had been arrested and refused release until he gave the authorities certain names. However the ‘record of detention’ document was dated 1 October 2006 and it stated that he was to be detained until 20 October 2006. From this the Tribunal concluded that the appellant’s detention period must have been known on the day of his alleged arrest. Since this was inconsistent with the appellant’s claims (above), the Tribunal concluded the ‘record of detention’ document was fabricated to support his story that he was arrested;
·The Tribunal did not accept the appellant’s claims that he had been arrested in October 1998 when he went to Beijing to protest against what he said was the banning of Falun Gong, or that he was arrested at a similar demonstration in early 1999, because the independent country information available to the Tribunal indicated that Falun Gong was first banned by the Chinese authorities in July 1999, following a major demonstration in Beijing in April 1999. The Tribunal also noted that at one stage during the hearing the appellant stated that the demonstration which led to the banning of Falun Gong took place in April 2001;
·Further, on this aspect, the Tribunal found that if the appellant were a genuine Falun Gong practitioner in the late 1990s as he claimed, he should have been fully aware of the circumstances and timing of the banning of Falun Gong by the Chinese authorities. In this regard, the Tribunal rejected the appellant’s explanation that he had become forgetful because of his alleged injuries, stating that these particular events were so significant for Falun Gong practitioners that it did not accept that a genuine Falun Gong practitioner might forget them.
·The Tribunal also found that if the appellant were a genuine Falun Gong practitioner who sought to leave China to escape persecution, it would have expected him to have continued his practice of Falun Gong in Australia, whereas the evidence he gave to the Tribunal was that he had not.
·Finally, while the Tribunal was satisfied that the appellant had exhibited some knowledge of Falun Gong, it concluded that his knowledge of the “practicalities of the Falun Gong exercises was deficient in a number of ways” and the appellant’s knowledge of Falun Gong principles was “quite superficial”.
For these reasons, the Tribunal found that the appellant was not a genuine Falun Gong practitioner and if he were to return to China in the reasonably foreseeable future, the appellant would not seek to practice Falun Gong and hence would not come to the adverse attention of the Chinese authorities. Further, as the appellant had made no claims other than those based on his alleged involvement with Falun Gong, the Tribunal found that he did not have a well-founded fear of persecution for a Convention-related reason in China.
THE FEDERAL MAGISTRATE’S DECISION
The appellant filed an amended application for judicial review in the Federal Magistrates Court on 31 October 2007 which contained the following grounds:
1. The Tribunal had bias against me and made a decision on my application based [on] the officer’s assumption.
2. The Tribunal failed to notify me in writing [of] the reason or part of the reasons for affirming the decision. The Tribunal therefore failed to consider my application for a protection visa in accordance with s424A of the Migration Act 1958. I was not given an opportunity to comment upon the reason.
1. 1. The Tribunal failed to carry out its statutory duty.
[original numbering]
The appellant did not file any written submissions, or a transcript of the hearing before the Tribunal. The appellant attended the hearing before Federal Magistrate Barnes on 19 June 2008 and made oral submissions to the effect that the Tribunal did not consider his case according to the Migration Act1958 (Cth) (‘the Act’), and it failed to properly understand his reasons, or to properly assess the persecution he may face in China.
The Federal Magistrate, having considered the Tribunal’s decision in light of the claims made by the appellant, held that the appellant “did not take issue with any particular aspect of the conduct of the Tribunal hearing. The evidence before the Court does not establish his claim of bias, whether actual or apprehended, or that the Tribunal conducted its review with an absence of good faith”. Further, her Honour held that any contention that the Tribunal had operated on ‘assumption’ had not been made out because the Tribunal’s decision was based on a proper consideration of the appellant’s claims and his evidence and its findings as to various deficiencies and inconsistencies in that evidence were open to the Tribunal on the material before it.
In relation to the appellant’s claim that the Tribunal had breached s 424A of the Act, the Federal Magistrate found that “[i]nsofar as the Tribunal’s findings were based on oral evidence that the [appellant] gave at the hearing and the documents he read to the Tribunal, such material is within the exception in s.424A(3)(b) of the Act”. In addition, her Honour found that the general country information relied on in the Tribunal’s decision fell within the same exception. The Federal Magistrate observed that there was no obligation upon the Tribunal under s424A to put its preliminary reasons, or its views about perceived inconsistencies in his evidence, to the appellant, referring to SZBEL v Minister for Immigration & Multicultural Affairs & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63. Her Honour therefore concluded that s424A of the Act had not been breached by the Tribunal.
The Federal Magistrate rejected each of the appellant’s oral contentions as baseless and concluded that as no jurisdictional error has been established, the appellant’s application for judicial review must be dismissed.
GROUNDS OF THE PRESENT APPEAL
The notice of appeal filed in this Court on 9 July 2008, raises grounds very similar to those raised before the Federal Magistrate, as follows:
1. The Tribunal did not believe my claims for the application for a protection visa because of the officer’s bias against me.
2. The Tribunal failed to consider my application according to S424A of the Migration Act 1958. The Tribunal had not notified me the reason or part of the reasons for affirming the decision. I was not given an opportunity to comment upon the reasons.
3. The Tribunal decision was not based on evidence and materials.
THE CONTENTIONS
At the hearing before me on 25 August 2008, the appellant appeared in person, unrepresented, but assisted by an interpreter. Ms Sirtes appeared for the first respondent.
The appellant had not filed any outline of written submissions and did not seek to make any oral submissions in support of his appeal. The first respondent had earlier filed an outline of written submissions and in the absence of any oral submissions by the appellant, Ms Sirtes did not seek to make any oral submissions, but sought to rely upon her outline of written submissions.
In summary, the first respondent’s outline of written submissions contained the following submissions:
·In relation to Ground 1: An allegation of bias is a serious one that requires both proof and particularisation. There is nothing on the face of the Tribunal’s decision (being the only material before the Court) to indicate that the test for bias set out in Re Refugee Review Tribunal: Ex Parte H (2001) 179 ALR 425 at [27] – [29]; [2001] HCA 28 had been met.
·In relation to Ground 2: The Federal Magistrate was correct in finding that s 424A was not engaged in the circumstances of this matter because the exceptions provided for in s 424A(3) applied to each of the oral evidence of the appellant, the general country information relied on by the Tribunal and the Tribunal’s reasoning process as to perceived inconsistencies in the evidence of the appellant.
·In relation to Ground 3: The Tribunal’s decision was largely based upon the appellant’s own evidence and independent country information and this ground cannot therefore succeed. In so far as this ground may be alleging a failure by the Tribunal to investigate the appellant’s claims, there is no such duty on the Tribunal: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004] HCA 32.
CONSIDERATION
The grounds of appeal raised by the appellant in his notice of appeal suffer from a number of obvious deficiencies. Firstly, none of them raises any alleged error on the part of the Federal Magistrate, the correction of which is the primary purpose of any appeal to this Court from a judgment of the Federal Magistrates Court. Instead, all of the grounds of appeal are directed to alleged errors on the part of the Tribunal. Secondly, even if I were to assume that the appellant intended to allege that the Federal Magistrate erred by failing to accept the alleged errors in the Tribunal’s decision, none of the grounds is particularised; and without particularisation, they are largely meaningless. This is particularly so in relation to grounds two and three, where the information said to be covered by s 424A and the evidence and materials the Tribunal allegedly failed to consider (respectively), are only identified in the most general of terms. Finally, ground three was not raised before the Federal Magistrate and should not therefore be permitted to be raised for the first time before this Court.
In so far as grounds one and two raise the same allegations as were raised before the Federal Magistrate, namely bias on the part of the Tribunal and breaches of s 424A respectively, having closely considered the Federal Magistrate’s decision, I cannot identify any error in her Honour’s reasoning. Specifically, I consider her Honour was correct in rejecting the allegation of bias in ground one, on the ground that it was neither clearly alleged, nor proved: SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [43]; [2002] FCAFC 361. And, in relation to the alleged breach of s 424A of the Act, I consider her Honour was correct in finding that no such breach had occurred because the appellant’s own evidence to the Tribunal, the general country information relied upon by the Tribunal and the Tribunal’s reasoning process all fell within the exceptions created by s 424A(3) of the Act.
For these reasons, I am unable to detect any error on the part of the Federal Magistrate in her consideration of the grounds of judicial review raised before her Honour. It follows that I am unable to find any merit in the appellant’s grounds of appeal before this Court that raise the same issues. This appeal must therefore be dismissed. I will hear the parties on the question of costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves . Associate:
Dated: 29 August 2008
Counsel for the Appellant: In person Counsel for the First Respondent: Ms S A Sirtes Solicitor for the First Respondent: Sparke Helmore
Date of Hearing: 25 August 2008 Date of Judgment: 29 August 2008
0
8
0