SZHTD v Minister for Immigration & Citizenship [2007] FCA 292

FEDERAL COURT OF AUSTRALIA

SZHTD v Minister for Immigration & Citizenship [2007] FCA 292 Migration Act 1958 (Cth), ss 91R, 424A

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 cited Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27 cited SZHTD v MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR NSD2037 OF 2006

EMMETT J

13 FEBRUARY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD2037 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: SZHTD

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EMMETT J DATE OF ORDER: 13 FEBRUARY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The name of the First Respondent be changed to the Minister for Immigration and Citizenship. 2. The Refugee Review Tribunal be joined as Second Respondent. 3. The Appeal be dismissed. 4. The Appellant pay the costs of the First Respondent in the sum of $2000.00. 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 NSD2037 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: SZHTD

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EMMETT J

DATE: 13 FEBRUARY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant is a citizen of the Peoples Republic of China. He arrived in Australia on 25 February 2005. On 30 March 2005, he lodged an application for a protection (class XA) visa under the Migration Act 1958 (Cth) (the Act). 2 On 28 April 2005 a delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), refused to grant a protection visa. On 3 May 2005 the appellant applied to the second respondent, the Refugee Review Tribunal (the Tribunal), for review of the delegate's decision. On 31 October 2005, the Tribunal affirmed the decision not to grant a protection visa. Notice of that decision was given to the appellant on 22 November 2005. 3 On 5 December 2005 the appellant commenced a proceeding in the Federal Magistrates Court seeking Constitutional writ relief in respect of the Tribunal's decision. On 3 October 2006 the Federal Magistrates Court dismissed the application and ordered the appellant to pay the Minister's costs. By notice of appeal filed on 18 October 2006, the appellant appeals to this Court from the decision of the Federal Magistrates Court. 4 When the matter was called on for hearing today the appellant appeared in person with the assistance of an interpreter. He was unable to articulate any submissions in support of the grounds of appeal, other than to say that he relied on s 91R of the Act. 5 In his original application to the Federal Magistrates Court, three grounds of review were specified. They were as follows: "(1) The Tribunal had bias against me , the Tribunal mentioned: 'The Applicant's claims are entirely dependent upon an acceptance of him as a credible witness. The JApplicant [sic] was not generally credible and the Tribunal does not regard the inconsistencies and other matters dealt with above as explicable in terms of any difficulty he faces as an asylum seeker.' I believe the above statement was by actual bias of the officer. (2) THe [sic] Tribunal failed to consider my claims because I provided different claims at my hearing invited by the Tribunal. (3) The Tribunal did not provide sufficient reasons to refuse my application." Those grounds were apparently abandoned when an amended application was filed in the Federal Magistrates Court on 24 May 2006. The grounds in the amended application were as follows: "(1) The Tribunal failed to carry out its statutory duty. Particulars: (a) the only information before the Tribunal was that contained in the First Respondent's file and that given to the Tribunal by the applicant. (b) The Tribunal was required to provide particulars of the information that was the reason, or part of the reason for affirming the decision … (c) The above particulars had to be provided in writing ..., (d) The information to be given extends to that information given by the Applicant to the First Respondent as part of his application for a visa. (e) The Tribunal based its findings on the information, or lack of information, contained in the Applicant's application for a visa and was required by section 424A, to give particulars of the information, explain why the information is relevant and provide the Applicant with an opportunity to comment upon it. The Tribunal's failure so to act was jurisdictional error." The words that I have omitted were quotations from the reasons of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 and Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27. 6 As the original application indicated, the Tribunal considered that the appellant's claims were entirely dependent upon an acceptance of him as a credible witness. However, the Tribunal did not regard him as generally credible and did not regard the inconsistencies, and other matters dealt with in the Tribunal's reasons, as explicable in terms of any difficulty the appellant faces as an asylum seeker. The Tribunal did not accept the appellant as credible and consequently rejected all of his material claims. 7 The appellant claimed that, if he returns to China, he will be persecuted because of his involvement with Falun Gong practitioners since 1997. In his evidence before the Tribunal, the appellant claimed he had dealings with Falun Gong practitioners from 1997 until 2001 and during that time gave the same person six amounts of cash to support the movement. However, the Tribunal considered the appellant's knowledge of the Falun Gong movement to be minimal. The appellant was unable to inform the Tribunal as to when Falun Gong practitioners were prohibited from practising in China. The Tribunal considered that the appellant's lack of knowledge in matters relating to Falun Gong supported its finding that he was not credible. Overall, the Tribunal did not accept that the appellant was involved with Falun Gong or that he is or was of adverse interest to the Chinese authorities. The Tribunal considered that there was no credible evidence upon which it could find that the appellant stood at risk of serious harm in the reasonably near future if he returned to China. 8 The Tribunal also referred to a document dated 18 January 2001, which was written in Chinese characters. The Tribunal had a translation made of the document. The Tribunal recorded in its reasons that the document read that the appellant was wanted because of his involvement in Falun Gong after 1997, when he incited people to practise Falun Gong and he was involved in handing out Falun Gong books and pamphlets. In reaching its conclusion the Tribunal had regard to the document. However, given the degree of the credibility problems with the appellant's evidence, the Tribunal considered that no weight should be given to the statements provided in the document. In light of the fundamental lack of credibility within the appellant's evidence, the Tribunal was not satisfied that the statements relating to the appellant's material claims in the document were true. 9 The Federal Magistrates Court examined the grounds contained in the amended application and concluded that no breach of s 424A of the Act had been established. It is quite apparent from a reading of the Tribunal's reasons that there was no information that formed part of the Tribunal's reasons that was not furnished to it by the appellant. The Tribunal simply did not accept the appellant's evidence as credible. 10 The notice of appeal contains three grounds, which bear little relationship to the amended application. The grounds in the notice of appeal are as follows: "(1) The Tribunal had bias against me and could not consider my application for protection according to section 91R of the Migration Act. The Tribunal failed to consider my claims. (2) The Tribunal failed to consider my application according to section 424A of the Migration Act. The Tribunal had not notified me the reason or part of the reason for affirming the decision before the decision was made. I did not have the opportunity to explain the reason. (3) Federal Magistrates Court did not consider my application for review according to law. A decision was made at my hearing without careful consideration of the arguing points." 11 There is no substance whatsoever in any of those grounds. Quite clearly, the primary judge considered the alleged failure to comply with s 424A in his Honour's reasons. There is no error in his Honour's consideration of that matter. 12 The appellant was unable to articulate any basis upon which s 91R of the Act would assist his position. Section 91R(1) provides that, for the purposes of the application of the Act and regulations for a particular person, the Refugees Convention (Convention) does not apply in relation to persecution for one or more of the reasons mentioned in the Convention unless that reason is the essential and significant reason for the persecution, the persecution involves serious harm to the person and the persecution involves systematic and discriminatory conduct. The Tribunal, however, found that there was no conduct at all of the nature complained of by the appellant. Section 91R therefore has no possible application. 13 There is no substance whatsoever in the suggestion that the Federal Magistrates Court did not consider the application according to law. The primary judge considered the only ground in the application and properly rejected it. 14 This appeal should not have been brought. It must be dismissed 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 Emmett.