SZIGN v Minister for Immigration & Citizenship [2007] FCA 275

FEDERAL COURT OF AUSTRALIA

SZIGN v Minister for Immigration & Citizenship [2007] FCA 275 SZIGN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD2423 OF 2006

JESSUP J

28 FEBRUARY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD2423 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIGN

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: JESSUP J DATE OF ORDER: 28 FEBRUARY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The name of the first respondent as shown in the title to the court documents be amended to Minister for Immigration and Citizenship. 2. The appeal be dismissed with 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 NSD2423 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIGN

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: JESSUP J

DATE: 28 FEBRUARY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court given on 23 November 2006 dismissing an application for orders in the nature of prohibition and certiorari and for a declaration in relation to a decision of the Refugee Review Tribunal made on 19 December 2005 and handed down on 12 January 2006. In that decision the Tribunal affirmed an earlier decision of the delegate of the respondent Minister to refuse the appellant a protection visa pursuant to the Migration Act 1958 (Cth) ('the Act'). 2 The appellant, who comes from China, claimed before the Tribunal that he and others were engaged in the farming of fresh water aquatic eels. According to the appellant, he fell into dispute with local government officials, in the area in which he lived and worked, with respect to the question of the prices which they were prepared to pay for the purchase of his products and with respect to the obligations which they sought to impose on him to supply those products to government purchasers in preference to other commercial outlets. This dispute led to the appellant organising other farmers, in similar businesses, in the area collectively to refuse to supply the government at the prices fixed by it. 3 According to what the appellant told the Tribunal, these actions led to his arrest in May 2004, but he was released after about a week in custody. He told the Tribunal that he continued to agitate for what might be described as a fairer deal for the aquatic farmers, and to organise them to resist the unfair commercial impositions of the local government officials. In one way or another, this led to a demonstration in September 2004, in the organisation of which the appellant claims to have been instrumental. According to him, the demonstration lasted for about a week, and he attended every day. 4 A fair inference from what the appellant put to the Tribunal was that he made no secret of the fact that he was instrumental in the campaign for a better deal for the aquatic farmers. He said that, after about a week, the demonstration was broken up by the authorities and those who had participated in it were required to disperse. He himself escaped to his home and sometime later fled China on a false passport and came to Australia. It was those circumstances which, according to the appellant, gave rise to his arrival in this country, circumstances which he contends justified a fear which he holds which would be of the kind referred to in the Refugees Convention. The appellant says that he fears persecution on account of his political beliefs and activities, and because the authorities in that part of China from which he came now perceive him to be antagonistic to the government, and to be someone who would oppose the government's policies. 5 After the Minister's delegate refused his application for a protection visa, he sought a review in the Tribunal. The Tribunal had recourse to a deal of what it referred to as "independent country information" about the way things happen in China. Largely, but it seems not entirely, on the basis of that information, the Tribunal said that it was not able to accept several key aspects of the appellant's claims. One of those key aspects related to the demonstration in September 2004. The independent country information apparently was to the effect that Chinese authorities were quick to break up protests of this kind. Particularly since the appellant had earlier come to the attention of the authorities, and had been arrested in May 2004, the Tribunal found it improbable that the appellant would have been able to continue his participation in the demonstration for a period of a week before finally the authorities required him and the other participants to disperse. The Tribunal said: In these circumstances the Tribunal finds it is not credible that the applicant would have been able to organise and attend a protest rally every day for a week if he had really come to the attention of the authorities as he claimed. 6 The appellant's case in this respect is that the Tribunal either misunderstood the nature of the factual claims he was making, or that it failed to give him sufficient notice of the information which was being held against him, as required by s 424A(1) of the Act. As to the first of those aspects, the appellant had said at the Tribunal that the reason the protest was allowed to continue for a week or thereabouts was that it was a peaceful protest and it was not really causing anyone any distress. Notwithstanding that, the Tribunal was still unprepared to accept the appellant's claim that the protest went on for about a week. It said that the claim was inconsistent with other aspects of his claims that the Chinese government repressed anti-government protests and that he was wanted by the authorities for organising them. 7 With respect to s 424A of the Act, the appellant addressed me at some length this afternoon. He alleged that the Tribunal had acted in breach of sub-section (1) of that section by not informing him in writing of the nature of that information by not leading him to understand why it was relevant to his application for review and by not inviting him to comment upon it. When he made a similar submission before the Federal Magistrate, the Magistrate said that information of the kind to which the department refers as general country information is excluded from the operation of s 424A(1) by sub-section (3) par (a) of that section. The same defence has been advanced before me this afternoon by Ms Francois who represents the Minister. I would accept that defence. 8 Par (a) of sub-section (3) says that sub-section (1) does not apply to information that is not specifically about the person concerned and is just about a class of persons of which he or somebody else is a member. The general country information to which the Tribunal had recourse in this matter related to the propensity of the Chinese authorities to crack down on, and promptly to break up, demonstrations and protests against the government. That was not information specifically about the appellant; rather it was information about general practices within that part of China, and perhaps China generally, and possibly about protesters in the broad, even if they included the appellant on this occasion. Therefore, I agree with the Federal Magistrate that the general country information relied upon by the Tribunal in this case was not covered by the Tribunal's obligations under s 424A(1) and that there was, therefore, no contravention of that sub-section. 9 A second element of the appellant's reliance upon s 424A is that the inconsistency between his claims about the demonstration in September 2004 and other aspects of his claims that the Chinese government repressed anti-government protests, and that he was wanted by authorities for organising such protests, was likewise a piece of information which should have been dealt with under s 424A and the appropriate notice given in writing. He said that the Tribunal should have made it clear to him in that notice why that circumstance was relevant to the review. In this respect also I accept the submission of Ms Francois that the comparison of different aspects of the appellant's factual claims before the Tribunal, judging one against the other for their consistency or inconsistency, was based entirely upon information given by the appellant himself within, and for the purposes of, the Tribunal proceedings, and therefore excluded by par (b) of s 424A(3). 10 I should add that the particular credibility concern which the Tribunal had about the appellant's claims with which I have just dealt was one of only three to be found within the Tribunal's written reasons for its decision. The appellant has not addressed me on the Tribunal's other concerns. This is an appeal from the Federal Magistrates Court. The primary jurisdiction in the issue of remedies of the kind which the appellant sought rests with that Court and I am not entitled to interfere unless I am persuaded that the Court made an error. I have read the reasons for judgment of the Federal Magistrate, and it is apparent that he dealt with each of the appellant's concerns in a sympathetic and thorough way and in a way which, for my own part, I find quite devoid of any appellable error. I gave the appellant the opportunity to address me on the question whether, and if so where, the Federal Magistrate had made a mistake in his reasons, but, save for the matters arising under s 424A to which I have referred, he was not able to assist. 11 I say that the Federal Magistrate dealt with the appellant's application in a sympathetic way, because in this case, perhaps more than in some others which come before that court, the Federal Magistrate expressed an understanding of, and some sympathy with, the appellant's particular concerns apropos the way the Tribunal had gone about resolving issues of fact before it. As the Federal Magistrate made quite clear, however, there is only one authority that is able to decide questions of fact under the Act, subsequent to the delegate, and that is the Tribunal. The Federal Magistrates Court has a role only where the Tribunal either fails to exercise its jurisdiction or acts in excess of its jurisdiction. Manifestly neither of those things happened in this case. 12 In the result I propose to dismiss the appeal. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup J.