SZLOI v Minister for Immigration and Citizenship

[2008] FCA 1137

FEDERAL COURT OF AUSTRALIA

SZLOI v Minister for Immigration and Citizenship [2008] FCA 1137

Migration Act 1958 (Cth) s 424(1)

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

SZLOI v Minister for Immigration & Anor [2008] FMCA 497

SZLOI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 641 OF 2008

MCKERRACHER J
5 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 641 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLOI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MCKERRACHER J
DATE OF ORDER:	5 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant is to pay the costs of the appeal fixed at $1800.

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 641 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLOI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MCKERRACHER J
DATE:	5 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal from a judgment of Federal Magistrate Emmett delivered on 17 April 2008 (SZLOI v Minister for Immigration & Anor [2008] FMCA 497). Her Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 4 October 2007. The Tribunal, in turn had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

2. The appellant is a citizen of the People’s Republic of China (PRC).  He arrived in Australia on 21 March 2007.  On 28 March 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.  A delegate of the first respondent refused the application for a protection visa on 22 May 2007.  On 25 June 2007 the appellant applied to the Tribunal for a review of that decision.

   THE APPELLANT’S CLAIMS

3. Before the Tribunal the appellant claimed to have a well-founded fear of persecution due to his practice of Falun Gong.  He was allegedly arrested and detained in October 2002 because of his practice of Falun Gong and claimed also to have been unemployed because of that practice.  The appellant asserted that he will be persecuted in China if he is forced to return.

   BEFORE THE TRIBUNAL

4. The Tribunal was not satisfied that the appellant had ever been involved in the practice of Falun Gong in China.  It found that while he had been able to point to the existence of five Falun Gong exercises, he had been unable to name or describe any of them or any of the texts of Falun Gong.  The Tribunal found this level of knowledge inconsistent with someone who claimed to have practised Falun Gong since 2002.

5. The Tribunal also found that the appellant had provided no corroborative evidence relating to his attempts to practise Falun Gong in Australia and therefore did not accept that he had practised in Australia.  As it was not satisfied that the appellant had been a member of the Falun Gong particular social group, the Tribunal was not satisfied that the appellant had suffered any persecution associated with his Falun Gong practice.  Nor did it accept that the appellant held a well-founded fear of future persecution for a Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 related reason (the Convention). 

   ON REVIEW BY THE FEDERAL MAGISTRATES COURT

6. Before the Federal Magistrate the appellant claimed:

   1.The Tribunal had bias against me and made a decision on my application based on the officer’s assumption.  The [Tribunal] failed to consider the claims of my application.

   2.The Tribunal failed to refer to proper independent information for the consideration of my application.

   3.The Tribunal failed to assess the chance of my persecution on my return to China.

7. Federal Magistrate Emmett found that a fair reading of the Tribunal decision record clearly demonstrated that the Tribunal understood and considered all the appellant’s claims, reached findings which were open to it and applied the correct law to its findings in reaching those conclusions.  Further, there was no evidence to support an allegation of actual or apprehended bias raised in ground 1.

8. In relation to ground 2, her Honour found that the Tribunal did not refer to any independent information (and was not pointed to any by the appellant in support of this ground) in making its decision and was not obliged to do so.

9. Finally, her Honour stated that a fair reading of the Tribunal record demonstrated that the Tribunal was not satisfied that the appellant had a well-founded fear of Convention-related persecution in China as it found that he was not a genuine Falun Gong practitioner.  The Tribunal applied the correct law to the facts as it found them to be.

10. In conclusion, Emmett FM, in considering the Tribunal’s decision and noting that the appellant did not provide any oral or written submissions or particulars, dismissed the application for review. 

    GROUNDS OF APPEAL

11. The notice of appeal raises the following grounds:

    1.The Tribunal had bias against me and made a decision on my application based on the officer’s assumption.  They failed to consider the claims of my application.

    2.The Tribunal did not provide me with adequate particulars of the independent information.

    3.The Tribunal failed to assess the chance of my persecution on my return to China.

12. Although the grounds are directed against the Tribunal rather than the Federal Magistrates Court, for the purposes of this appeal, the grounds will be considered as alleging a failure on the part of the Federal Magistrates Court to identify those failures of the Tribunal. 

13. With that understanding, it is obvious that the three grounds raised in the notice of appeal are identical in substance to those contained in the amended application filed on 19 December 2007 and heard before the learned Federal Magistrate. 

14. At the hearing of the appeal before me the appellant made oral submissions in support of the appeal as a whole.  Some of those submissions travelled a little outside the three grounds but the substance of the arguments raised were reflected by the three grounds. 

    CONSIDERATION

    Ground 1 - Bias

15. The first ground raised by the appellant is that the Tribunal was biased against him.  The appellant’s claim may be interpreted as an allegation of apprehended bias in the sense that the Tribunal made its findings ‘based on the officer’s assumption’ and ‘failed to consider the claims’ of his application. 

16. In order to establish apprehended bias on the part of the Tribunal, the appellant must demonstrate that the Tribunal Member did not bring an impartial and unprejudiced mind to the resolution of the question: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507.

17. On analysis of the Tribunal’s Decision Record including the Statement of Decision and Reasons, there is no indication that the Tribunal Member had a pre-existing state of mind that would render her unable or unwilling to have regard to evidence and arguments put before her.  The Tribunal Member arrived at her decision on the basis that she was not satisfied that the appellant was a Falun Gong practitioner in China.  She came to this conclusion on the basis that the appellant demonstrated little knowledge of Falun Gong practice.  In my view, the Federal Magistrate was correct in finding that there was no evidence in support of the appellant’s allegation of bias and that the ground could not succeed.

    Ground 2 – Independent Information

18. The appellant has not particularised this ground of appeal nor has he provided any evidence in support of this claim.  It is unclear what ‘independent information’ the appellant is referring to.  Before the Federal Magistrate, the appellant was asked by the Court whether there was any independent information in the nature of documents that he gave to the Tribunal that the Tribunal failed to consider.  The appellant answered that there were none. 

19. The Tribunal is only obliged to disclose information to an applicant if it is information personal to the applicant and it is the reason or part of the reason for affirming the decision under review: s 424(1) of the Migration Act 1958 (Cth) (the Act). The obligation under s 424(1) of the Act does not extend to information not specifically about the applicant; information that the applicant gave for the purpose or during the process of the application for review; or information that is non-disclosable: s 424A(3).

20. In my view, this ground has not been made out.

    Ground 3 – Convention-Related Persecution on Return to China

21. The appellant has not provided any particulars or evidence in support of these claims.  On reading the Tribunal’s Decision Record, including the Statement of Decision and Reasons, there is no evidence to suggest that the Tribunal did not adequately assess the appellant’s chance of persecution.  As discussed above, the Tribunal examined the appellant’s claims in relation to being a Falun Gong practitioner in China.  It concluded that on the basis of the appellant’s inability to answer basic questions relating to the practice that the appellant had never been a Falun Gong practitioner.  As a result, the Tribunal found that the appellant did not have a well-founded fear of persecution for a Convention reason.  This ground also fails.

22. In my opinion, the approach taken by the Federal Magistrate and her Honour's conclusions are entirely correct.

    CONCLUSION

23. The appeal will be dismissed.  The appellant is to pay the costs of the appeal fixed at $1800.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate:

Dated:        5 August 2008

The Appellant represented himself.
Counsel for the First Respondent:	D Watson
Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	4 August 2008
Date of Judgment:	5 August 2008