SZIWO v Minister for Immigration & Multicultural Affairs [2006] FCA 1604

FEDERAL COURT OF AUSTRALIA

SZIWO v Minister for Immigration & Multicultural Affairs [2006] FCA 1604 SZIWO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL NSD 1752 OF 2006

EDMONDS J

8 NOVEMBER 2006

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1752 OF 2006

BETWEEN: SZIWO

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EDMONDS J DATE OF ORDER: 8 NOVEMBER 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed. 2. The applicant pay the first respondent's costs. 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 1752 OF 2006

BETWEEN: SZIWO

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EDMONDS J

DATE: 8 NOVEMBER 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction 1 This is an application for leave to appeal from an interlocutory judgment of the Federal Magistrates Court (Driver FM) dismissing an application for a review of a decision of the second respondent ('the Tribunal') handed down on 18 April 2006 on the grounds that the court was not satisfied that the application raised an arguable case for the relief claimed (SZIWO v Minister for Immigration & Anor [2006] FMCA 1214). 2 The applicant, a citizen of China, made claims in his protection visa application that he was the victim of corrupt conduct of the part of a policeman in China. The applicant claimed that the policeman had demanded bribes from him because he had circulated an anti-government book, The Nine Commentaries, a publication linked to the Falun Gong movement in China. The applicant asserted that he in fact faced a criminal prosecution instigated by this policeman when the policeman found out that the applicant had left China. 3 The application to the Federal Magistrates Court contained seven grounds. Briefly those grounds were: (1) Breach of s 424A(1) of the Migration Act 1958 (Cth) ('the Act'); (2) failure to explain the relevance of information and to give reasons for the decision during the hearing; (3) failure to explain the relevance of the independent country information during the hearing; (4) failure to give the applicant a fair chance to comment on the information that may have been relevant at (2) and (3); (5) failure to observe the obligations under s 425 of the Act by not allowing the applicant to comment on adverse information during the hearing; (6) the applicant claims he could not provide further submissions after the hearing because of the risk involved; and (7) an allegation that several of the applicant's friends in a similar situation were granted refugee status by the Tribunal and that he was treated differently. 4 At a directions hearing on 22 February 2006, Driver FM gave the applicant leave to file any amended application giving complete particulars of each ground of review relied upon by 28 July 2006 and ordered the applicant to file any additional affidavits for the purpose of demonstrating an arguable case by 28 July 2006. His Honour further ordered that a show cause hearing under r 44.12 of the Federal Magistrates Court Rules ('the Rules') be held on 21 August 2006. 5 Contrary to the assertions made by the applicant at [7] of his affidavit sworn 11 September 2006 in support of the application for leave to appeal and at [8] of the draft notice of appeal which accompanied the application, the applicant did not provide an amended application or provide any written submissions or affidavit evidence prior to, or during the show cause hearing. As indicated above, at the show cause hearing his Honour was not satisfied that the application raised an arguable case for the relief claimed. His Honour reviewed the grounds of the application set out above and found that: (1) There was no arguable case of a breach of s 424A of the Act. (2) There was no arguable case of a breach of s 425 of the Act. (3) The applicant advanced no evidence in support of an assertion that the conduct of the hearing was unfair and in the absence of any supporting evidence there was no substance to an assertion of procedural unfairness. (4) No other jurisdictional error was apparent on the available material. 6 In consequence his Honour dismissed the application pursuant to r 44.12(1)(a) of the Rules. The judgment was interlocutory (r 44.12(2)) and an appeal can only be brought from his Honour's judgment with the leave of this Court. 7 There are two considerations which provide general guidance in the exercise of the discretion to grant leave to appeal. The first relates to the prospects of the proposed appeal and has been formulated as whether the decision is attended with sufficient doubt to warrant it being reconsidered by the Full Court. The second is whether substantial injustice would result if leave were refused, supposing the decision to be wrong. The principles were first enunciated in Neiman v Electronic Industries Ltd [1978] VR 431 and are replicated in Décor Corporations v Dart Industries (1991) 33 FCR 397. 8 The Tribunal did not accept the applicant's claims that he had to flee to China because he was 'subject to increasingly unsustainable extortion demands from a police officer, or for any other reason or prospective harm'. Indeed, the Tribunal found that the applicant was 'a witness of low credibility'. His oral evidence consisted of 'bare assertions' and his responses were 'often hesitant and revealed anomalies and internal inconsistencies'. 9 The Minister's solicitor properly drew my attention to the Tribunal's observations concerning a photograph of the applicant in the last full paragraph of page 14 of the Tribunal's reasons. The Tribunal made it clear that it did not attach any weight to the photograph, but it did infer that the offering of the photograph, as corroborative evidence of the applicant's commitment to Falun Gong in Australia, supported the Tribunal's conclusion that that the sole purpose for having the photograph taken was to support his refugee application. 10 No case was put by or on behalf of the applicant that the Tribunal's reference to the photograph resulted in any beach of s 424A(1) of the Act and even if it had, I am firmly of the view that the photograph itself did not constitute 'information' for the purposes of that provision. What one may glean from viewing a photograph does not in my view constitute information but rather is a conclusionary thought process, which may well differ from person to person and therefore is not information requiring disclosure in the form and in the terms required by s 424A(1) of the Act. 11 In short, the Tribunal's decision was based on its assessment of the applicant's responses given during the hearing and not on information derived from his protection visa application. Finally, there was no breach of s 425 of the Act because the Tribunal properly invited the applicant to attend a hearing, which he attended with the assistance of an accredited interpreter. 12 Having read and considered the Tribunal's reasons for decision, his Honour's reasons for judgment on the show cause application, the applicant's affidavit in support of his application for leave to appeal and the grounds set out in the draft notice of appeal which accompanied the application, I am of the view that the judgment of his Honour below is not attended with sufficient doubt as to warrant its reconsideration by this Court. On the material before me, no error is demonstrated as to the approach or findings of his Honour, and in the absence of identification of some error of law going to the correctness of the judgment, the first consideration to which I am required to have regard is not satisfied. 13 I am also of the view that no substantial injustice would result if leave were refused supposing the decision to be wrong. 14 For the foregoing reasons the application for leave to appeal must be refused with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.