SZLUG v Minister for Immigration & Citizenship

[2008] FCA 1210

FEDERAL COURT OF AUSTRALIA

SZLUG v Minister for Immigration & Citizenship [2008] FCA 1210

SZLUG and SZLUH v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 572 OF 2008

JESSUP J
6 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 572 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLUG
First Appellant

SZLUH
Second Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	6 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeals be dismissed.

2.The appellants 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 572 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLUG
First Appellant

SZLUH
Second Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE:	6 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. These are appeals from a judgment of the Federal Magistrates Court given on 10 April 2008 dismissing applications for judicial review in relation to a decision by the Refugee Review Tribunal (“the Tribunal”), signed on 8 November 2007 and handed down on 29 November 2007.  In that decision, the Tribunal affirmed an earlier decision of a delegate of the respondent Minister not to grant the appellants Protection (Class XA) Visas under the provisions of the Migration Act 1958 (Cth) (“the Act”).  The second respondent, the Tribunal, has filed a submitting appearance.

2. The appellants, who are husband and wife, arrived in Australia on 6 May 2007.  The appellant husband based his application for a visa upon claims that he has suffered persecution in China on account of his practice of Falun Gong since 1998 and that he fears serious harm from the Chinese authorities should he return to China.  He claims that he was, and will be, monitored, arrested, detained and beaten.  He also claims that the business run by him together with his wife was forced to pay heavy tax, that he was arrested and jailed for distributing petitions and that he was mistreated whilst in jail. 

3. The appellant wife makes no separate claim to fear persecution on her own account, but relies upon the circumstance that she is a dependant of the appellant husband.  I shall refer to him hereafter as the appellant. 

4. In his application in the Federal Magistrates Court, the appellant relied upon the following grounds:

   1.The Refugee Review Tribunal appears to have fallen into jurisdictional error by failing to put to the applicant the issue of the authenticity of the documentary evidence the applicant submitted to the Second Respondent in the course of review in accordance with s.425(1) of the Migration Act 1958 (Cth).

   2.It is not reasonable for the Tribunal to conclude that I am or were never being a Falun Gong practitioner just because I did not know the names of the books of Falun Gong.

5. In his reasons for judgment handed down on 10 April 2008, the Federal Magistrate dealt with each of these grounds.  In relation to the first ground – that the Tribunal erred by failing to put to the appellant the issue of authenticity of documentary evidence – his Honour held that no obligation of disclosure arose.  His Honour found that the disclosure obligation was not enlivened because the information was provided by the appellant for the purposes of the review and because the Tribunal’s rejection of the appellant’s credibility was not “information” for the purposes of s 424A.  His Honour continued:

   Neither was there any obligation of disclosure for the purposes of s.425 of the Migration Act. The Tribunal did not rely upon the arrest warrant in order to affirm the decision under review. The Tribunal was willing to accept the possibility that the arrest warrant might be genuine. However, the Tribunal was not prepared to infer that the arrest warrant had anything to do with the applicant's asserted Falun Gong practice because for other reasons it rejected the applicant's credibility. The applicant was clearly put on notice at the Tribunal hearing about the Tribunal's credibility concerns in relation to his claims of being a Falun Gong practitioner.

   That passage, from his Honour’s reasons, refers to a statement by the Tribunal that a document purporting to be an arrest warrant produced by the appellant did not state the basis for that arrest and that, by reason of its concerns otherwise as to the appellant’s credibility, the Tribunal was not prepared to accept the appellant’s say-so that the document was based upon his engagement in the practice of Falun Gong.  I can see nothing wrong with the way that the Federal Magistrate dealt with this ground, and the appellant has made no submissions at all about it in his appeal.  In those circumstances, I must reject the first ground of appeal, which duplicated the first ground relied upon in the appellant’s initiating application before the Federal Magistrate.

6. In relation to the second ground below, the Federal Magistrate held that the assertion that it was not reasonable for the Tribunal to conclude that the appellant was not a genuine practitioner of Falun Gong, just because he did not know the names of the books of Falun Gong, was based upon an inaccuracy.  His Honour found that:

   The assertion is inaccurate because the applicant's lack of knowledge of the names of the two Falun Gong books was simply one element in the range of factors that led to the Tribunal's adverse credibility conclusion.

   His Honour’s conclusion in this regard is not challenged on appeal, and nothing further needs to be said about it. 

7. As I have mentioned above, in his Notice of Appeal in this court, the appellant advanced a ground which was on the same terms as the first ground upon which he had sought to move the Federal Magistrate.  I have dealt with that matter already.  Additionally, the appellant relied upon a second ground of appeal, namely:

   I was ever prosecuted by Chinese Government because I am a member of Falun Gong.

   I accept the submissions made on behalf of the respondent Minister that this ground, whatever it means, is incapable of sustaining a legitimate challenge to the Federal Magistrate’s judgment.  It seems to go no further than to assert the correctness of a factual proposition which was rejected by the Tribunal. 

8. For the above reasons I would reject each of the grounds of appeal advanced by the appellant.  Although he made brief submissions before me today, nothing at all was said in support of those grounds and, in the result, his appeal must be dismissed. 

9. Since the appellant wife’s appeal would depend entirely upon the success of the appellant husband’s appeal, her appeal too must be dismissed. 

10. In the course of the hearing today, the appellant told me that about two months ago he was provided with a document which proved that he was a genuine Falun Gong practitioner. He told me that the document was a Chinese judgment sentencing him to labour camp for reason of practising Falun Gong. He informed me that he had it in court today; but, because it was written in Chinese, it was unintelligible to counsel for the Minister. I did not take the matter any further, since I informed the appellant, and it is my view, that, whatever that document states, it could not alter the correctness of the disposition of his case by the Federal Magistrate. The appellant informed me that he did not produce this document before the Tribunal by reason of the fact that he did not then possess it. Neither did he ask the Tribunal for an opportunity to obtain the document. It is only the Tribunal that has the primary jurisdiction to decide the question whether the appellant is a refugee within the meaning of the convention and, therefore, to take into account documents of this kind. The document not having been before the Tribunal, and it not being suggested that the Tribunal erred in refusing to give the appellant further time to obtain the document, the recent production of the document by the appellant, cannot bear upon the question whether the Tribunal either exceeded or failed to take up its jurisdiction under the Migration Act.

11. In saying these things I do not, of course, intend to imply that the document need to be of no value to the appellant in such dealings as he may hereafter have with the Minister’s representatives.  That will be entirely a matter for him and, if he chooses to provide the document to those representatives, for them.  However, for the reasons earlier explained, the matters I have just discussed have no bearing upon the proper disposition of the appeals now before the court.  Those appeals will 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 Jessup.

Associate:
Dated:        15 August 2008

Counsel for the Appellants:	The appellants appeared in person
Counsel for the Respondents:	Mr G Johnson
Solicitor for the Respondents:	DLA Phillips Fox

Date of Hearing:	6 August 2008
Date of Judgment:	6 August 2008