SZLGT v Minister for Immigration and Citizenship

[2008] FCA 1206

FEDERAL COURT OF AUSTRALIA

SZLGT v Minister for Immigration & Citizenship [2008] FCA 1206

SZLGT v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 546 OF 2008

JESSUP J
4 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 546 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLGT
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	4 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the first respondent.

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 546 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLGT
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE:	4 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court of Australia, given on 28 March 2008, dismissing an application by the appellant for an order to show cause why a remedy should not be granted in the exercise of the court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in relation to a decision by the Refugee Review Tribunal (“the Tribunal”) signed on 6 August 2007 and handed down on 16 August 2007. In that decision, the Tribunal affirmed an earlier decision of a delegate of the respondent Minister not to grant a Protection (Class AZ) Visa to the appellant pursuant to the Act. The second respondent, the Tribunal, has filed a submitting appearance in this appeal.

2. The appellant arrived in Australia on 16 January 1999, on a Subclass 456 visa. On 15 February 1999, he applied for a Protection (Class AZ) Visa under the Act. The delegate refused that application on 23 February 1999, but the subsequent notification of that refusal was, it seems, considered to be irregular in some way and ultimately the appellant was renotified of the refusal. The application which came before the Tribunal, and which has become the subject of the present appeal, was made in May 2006, and the Tribunal’s confirmation of the decision of the delegate was, as I have said, done in August 2007.

3. Before the Tribunal, it seems that the applicant’s case for a protection visa was based upon what he claimed to be a fear of persecution should he be obliged to return to the country of his citizenship, China, by reason, first, of his claimed involvement in the democratic movement which engaged in conspicuous activities in June 1989; and, secondly, by reason of the fact that he claimed to have been a Falun Gong practitioner.  It is the second of these claims which has become the focus of his case on the present appeal. 

4. In his reasons for judgment, delivered on 28 March 2008, the Federal Magistrate observed that he was able to identify only one proposition in the appellant’s application for judicial review that might sustain the conclusion that the Tribunal had made an error of a jurisdictional kind that would attract that court’s jurisdiction under s 476. That proposition was that the Tribunal had rejected the evidence of two witnesses called by the appellant, upon the basis that it had already found that the appellant was not a genuine Falun Gong practitioner. That finding was based on the Tribunal’s assessment of the appellant’s credibility, and it was one which appears to have been made by the Tribunal with such confidence that it was able, in effect, to reject what might otherwise have been corroborative evidence on the part of those two witnesses. The Federal Magistrate was concerned that, in proceeding in this way, the Tribunal might have failed in its duty to assess the credibility of those witnesses as such, and to measure the strength and reliability of the appellant’s case as a whole by reference to all the evidence, including that evidence. His Honour dealt thoroughly and, in my respectful view, correctly, with those concerns. He drew the conclusion that it was not a jurisdictional error for the Tribunal to have formed a view, particularly an apparently strong one as it had, about the credibility of the appellant’s own claims to be a Falun Gong practitioner and then to have, in effect, depreciated the value of the evidence of the appellant’s other witnesses by reason of that circumstance.

5. In a sense, the matters to which I have just referred are beside the point in the context of the present appeal, since the appellant has not attempted to attack the way in which his Honour below dealt with these issues.  Rather, he made it clear to me this morning that the only basis upon which he complains that the Federal Magistrate was in error was that he was misled into thinking that, subject only to the passage of a period of 48 hours or thereabouts after his hearing before the Federal Magistrate, the Minister would be conceding the case and would consent to a disposition of the application in favour of the appellant.  When that did not happen in the way that the appellant says he reasonably anticipated, he claimed that the hearing before the Federal Magistrate was an unfair one. 

6. In order to deal with this point it will be necessary to say something about the course of the hearing before the Magistrate, in which respect I have had the benefit of a photocopy of a confidential transcript which the appellant attached to his outline of submissions in this court.  That transcript reveals a lengthy exchange between the Federal Magistrate and counsel for the Minister in which the Magistrate raised the question whether the Tribunal might have been in error in its factual conclusion that the appellant had not practised Falun Gong at all until about the end of 2005 or the beginning of 2006, at which time, on his own case, he commenced to practise it publicly.  His case before the Tribunal, it seems, was that he had practised Falun Gong privately for some years prior to that, and the two witnesses whom he called in support before the Tribunal had given evidence (if that is the right word for it) which would support his claims to have been practising Falun Gong privately for some time before the end of 2005.  The general drift of the point being made by the Magistrate in the course of argument was that the Tribunal went from the unobjectionable conclusion that the appellant had not commenced the public practice of Falun Gong until about the end of 2005 or the beginning of 2006 to the possibly more controversial conclusion that he had not practised Falun Gong at all until that time, and had done so without any reference to the corroborative evidence upon which appellant relied.

7. Before the Federal Magistrate, counsel for the Minister sought strenuously to support the approach of the Tribunal, particularly insofar as it observed that it was unpersuaded by the appellant’s supporting evidence that he had been practising Falun Gong before about the end of 2005. However, his Honour pressed upon counsel an interpretation of the way in which the Tribunal had proceeded that might, if one view of the law were taken at least, be regarded as favourable to the appellant.  Ultimately, his Honour said to counsel that those instructing her might consider their position and might take the view, in effect, that it would be both satisfactory and pragmatic to allow the application to succeed rather than either to have it determined contrary to the Minister’s interests or to have it determined contrary to the appellant’s interests only to have an appeal succeed in this court. 

   Counsel made it clear to his Honour that she had made such submissions as she was able on the point, and added:

   I seriously don’t want to waste the court’s time in making everyone come back, so, what I’m saying to your Honour is that I’ve said everything that I wish to say in support of this Tribunal’s decision and whilst it’s unhappy - it’s an unhappy statement, my submission is that when it’s read in its context, you can see the Tribunal member’s reasoning both on the credibility of the applicant and its position on the applicant’s conduct in Australia, which is the essential issue.

   In the latter respect, counsel was referring to issues which were significant under s 91R(3) of the Act and which the Tribunal invoked in the present case. The Federal Magistrate said that he would give counsel for the Minister a short period, which appears to have been of about 48 hours, to indicate whether those instructing her would concede the application or, alternatively, would allow the matter to be determined by his Honour.

8. Addressing the appellant, his Honour referred to the concern which he expressed that the Tribunal had made a finding about his practice of Falun Gong before 2006 even though two people had said that he was practising Falun Gong before 2006.  His Honour told the appellant that the Minister was going to consider whether he would accept that this was an error and would let the court know in no more than two days.  A period of no more than two days was, after some exchange with counsel for the Minister, resolved to be by the following Monday, in circumstances where the hearing occurred on the previous Thursday.  His Honour continued, addressing the appellant:

   If the Minister accepts that there was an error made, the matter will go back to the Tribunal.  If the Minister does not accept that an error was made, I will have to make up my mind and provide you with a decision.  You can understand that just because I have raised these concerns, I’ve not necessarily made up my mind one way or the other, so, my decision is no foregone conclusion. 

   Before you leave this room, you must give Ms McWilliam [counsel for the Minister] or her solicitor, your current postal address and mobile phone number so that they can contact you, and tell you what has been decided.  But you will not have to return to the Court.

9. In the events which transpired, the Minister did not concede the application, and his Honour was obliged to determine it according to the submissions which had been made.  He did so, and, as I have said, nothing which the appellant has put on this appeal casts any doubt upon the correctness of that determination.  There was, in my view, no unfairness, irregularity, or other error in the way that the Federal Magistrate dealt with the procedure by which the Minister would indicate whether he proposed to concede the appeal.  His Honour made it quite clear to the appellant what was being done.  The appellant had the normal opportunity to present his case, and he had done so.  The Minister had made his submissions in the presence of the appellant.   Nothing further was put to his Honour by the Minister.  His Honour then decided the case according to the submissions which had been made, including those made by the appellant himself. 

10. In the circumstances, I would reject the appellant’s proposition that there was any unfairness, irregularity or other error in the way the Federal Magistrate disposed of the application.  It follows that the appeal must be dismissed, and I shall so order.

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

Associate:

Dated:        12 August 2008

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondents:	Ms L Clegg
Solicitor for the Respondents:	Clayton Utz

Date of Hearing:	4 August 2008
Date of Judgment:	4 August 2008