SZLHY v Minister for Immigration and Citizenship
[2008] FCA 1097
•24 July 2008
FEDERAL COURT OF AUSTRALIA
SZLHY v Minister for Immigration and Citizenship [2008] FCA 1097
Migration Act 1958 (Cth)
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
SZLHY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 464 OF 2008
REEVES J
24 JULY 2008
DARWIN
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 464 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZLHY
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
REEVES J
DATE OF ORDER:
24 JULY 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 464 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZLHY
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
REEVES J
DATE:
24 JULY 2008
PLACE:
DARWIN
REASONS FOR JUDGMENT
INTRODUCTION
This is an appeal against the judgment of Federal Magistrate Lloyd-Jones delivered on 20 March 2008 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’). The Tribunal’s decision was delivered on 16 August 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 23 January 2007. The appellant has an ex-wife and daughter in China. The appellant lodged an application for a protection visa with the Department of Immigration and Citizenship just over one month later, on 28 February 2007. The application was refused by a delegate of the first respondent on 24 March 2007 and on 24 April 2007 the appellant applied to the Tribunal for a review of that decision.
The appellant filed a statement with his visa application which set out the basis for his claims to fear persecution in China. In summary, he was allegedly appointed as the committee member in charge of dispute resolution in his local village committee, which required him to ‘re-educate’ Falun Gong practitioners and also to prevent people who ‘are not happy with the local government’ from appealing ‘to higher authority’. The appellant stated that he had disagreed with the policy and advocated a more open policy, and was then subjected to criticism by both the local government and the higher authority. Further, in 2006 he sent messages to three Falun Gong practitioners warning them that they were to be arrested and, after the practitioners fled, the authorities allegedly became aware that it was him who had ‘leaked the information’. The appellant stated that he will be mistreated by the government for his ‘political opinion and ... [his] previous assistance to Falun Gong practitioners’ if he returns to China.
THE TRIBUNAL’S DECISION
The appellant attended a hearing before the Tribunal on 21 June 2007 and gave evidence and presented his passport. The ‘Decision Record’ of the Tribunal records that the appellant claimed that he was not wanted by police at the time that he cleared customs but that he was wanted now, though he could not say with clarity when he heard that he was wanted by police. The Tribunal records that it ‘suggested to the [appellant] that he just suspected they suspected him and he agreed’. The appellant did not maintain his claim of political persecution before the Tribunal; rather he stated that he has his own political opinion but has not suffered harm for it (apart from anxiety in relation to his divorce).
The Tribunal reported intense questioning of the appellant about his actions in relation to the Falun Gong practitioners. It stated in the ‘Findings and Reasons’ section of its decision that the appellant lacked credibility and that his material claims could not be accepted; citing several ‘inconsistencies, contradictions and implausibilities’ in his evidence. These related to:
the appellant’s ability to acquire a passport in his own name and exit China in October 2006;
contradictory dates he gave when asked when he was reported to police;
his account of how, when and why he had brought three Falun Gong practitioners to the attention of the authorities;
contradictory responses the appellant offered about the status of the three Falun Gong practitioners (leaders or otherwise);
his account of the policy guiding the alleged arrest of practitioners in early 2006; and
his vague responses about when his committee had become aware that he had informed the Falun Gong practitioners of their impending arrest.
As a result of its adverse credibility findings, the Tribunal was ‘not satisfied that the [appellant] was involved in the investigation of persons suspected of practising Falun Gong in China in 2006’, nor that he had warned people that the authorities were about to arrest them, nor that he was or is of interest to the Chinese authorities because of such action. The Tribunal concluded that:
There is no credible evidence upon which the Tribunal could find that the [appellant] stands at risk of suffering serious harm in the reasonably foreseeable future if he returns to China.
The Tribunal therefore determined that the appellant did not hold a well-founded fear of persecution for a Convention-related reason and affirmed the delegate’s decision.
THE FEDERAL MAGISTRATE’S DECISION
The appellant filed an Application for review in the Federal Magistrates Court on 13 September 2007, which raised the following (single) ground of review:
The RRT failed to afford the applicant procedural fairness as it failed to invite the applicant to comment on information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review. By failing to invite the applicant to comment the Tribunal acted in breach of s 424A of the Act.
In RRT’s decision it was pointed out that there were inconsistencies, contradictions, and implausibility in the applicant’s evidence. The applicant was never advised of such inconsistencies before the decision was made and was never given an opportunity to explain on them.
The appellant was allocated a legal advisor and had leave to file further or amended material, but did not do so. The Federal Magistrate noted that the delegate’s decision had been based on an adverse view of the appellant’s credibility and risk of harm so that the appellant had been ‘on notice’ that the veracity of his entire account was doubted by the Tribunal.
The Federal Magistrate accepted the first respondent’s submission to the effect that the Tribunal’s adverse credibility finding was based on several inconsistencies in the appellant’s evidence which were themselves not ‘information’ for the purposes of s 424A(1) of the Migration Act 1958 (Cth) (“the Act”): citing SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 in support. Similarly his Honour accepted that, where country information was used in relation to the appellant’s acquisition of a passport, this was excluded from the operation of the section by s 424A(3)(a) (not being information specifically referring to the appellant or another person) and there was no obligation on the Tribunal to put its reasoning process to the appellant.
Noting that the appellant was not represented, the Federal Magistrate made his own assessment of the material before the Court but was unable to discern any jurisdictional error. The application for review was accordingly dismissed.
GROUNDS OF THE PRESENT APPEAL
The Notice of Appeal to the Court repeats verbatim the sole ground of review before the Federal Magistrate (see [8] above).
SUMMARY OF SUBMISSIONS
At the hearing of this appeal, the appellant appeared unrepresented but assisted by an interpreter. Mr Cox appeared for the first respondent.
The appellant submitted that he had a lack of knowledge of law and the English language. He said that neither the Tribunal nor the Federal Magistrate had therefore understood the claims he had made to them. He asked me to refer the matter back to the Tribunal so he could employ someone to properly explain his claims to it.
Mr Cox had earlier filed an outline of written submissions. In his written submissions, he submitted that an appeal to this Court from the Federal Magistrates Court is directed to correcting error on the part of the Federal Magistrates Court and the appellant had not identified any such error in his Notice of Appeal. He submitted that the Federal Magistrate had correctly rejected the appellant’s sole ground for judicial review on the basis that:
a)the Tribunal is not bound to put its subjective thought processes to the appellant; and
b)independent country information is excluded from the operation of s 424A(1) by s 424A(3)(a).
In response to the appellant’s submissions that the Federal Magistrates Court had not understood his claims, Mr Cox pointed to the Federal Magistrate’s reasons for decision at [17] and [18] as follows:
The applicant in these proceedings was a self-represented litigant who appeared with the assistance of a Mandarin interpreter. The Court provided the applicant with a panel advisor but the applicant did not file an amended application. He had no clear understanding of the function of this hearing and was under the mistaken belief that it was a further merits review of his protection visa application. The judicial review process of the Tribunal’s decision was again explained and he was invited to make oral submissions. Unfortunately, the applicant did not respond with any meaningful submissions other than to request that the matter be returned to the Tribunal so that he could explain his claim.
This places an obligation on the Court to independently consider whether argument based on the material – that is the Court Book and in particular the Tribunal decision – may support a claim of jurisdictional error. The solicitors for the first respondent assisted with written submissions in response to the application. I am satisfied that the issue identified in the application has been satisfactorily addressed. I agree with those submissions that on a fair reading of the material available to the Court, the applicant’s claims were rejected on a credibility finding. It is not apparent that any other ground of review exists which would suggest that the Tribunal made a jurisdictional error in its decision-making process. Consequently, the applicant’s claims should be dismissed.
CONSIDERATION
In my view, this appeal had no merit. The appellant has not attempted to identify any error in the Federal Magistrate’s decision but instead has merely repeated the sole ground of review before the Federal Magistrate. As the first respondent’s counsel correctly submitted, an appeal to this Court from the Federal Magistrates Court is directed to correcting error on the part of the Federal Magistrates Court and it is therefore incumbent upon the appellant to identify an error in the decision of the Federal Magistrate from which the appeal lies.
Nonetheless, since the appellant is unrepresented, I have read the Federal Magistrate’s decision and the decision of the Tribunal. Having done so, I consider the Federal Magistrate was correct in his reasons for rejecting the sole ground of review before him (see [15] above). I cannot detect any error on the part of the Tribunal, let alone jurisdictional error, that the Federal Magistrate should have detected and addressed.
For these reasons, this appeal will be dismissed.
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: 24 July 2008
The Appellant appeared in person. Counsel for the Respondent: Mr A Cox Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 19 June 2008 Date of Judgment: 24 July 2008
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