FEDERAL COURT OF AUSTRALIA SZGAM v Minister for Immigration and Citizenship [2007] FCA 329 SZGAM AND SZGAN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1789 OF 2006 LINDGREN J 19 FEBRUARY 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1789 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZGAM First Appellant SZGAN Second Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: LINDGREN J DATE OF ORDER: 19 FEBRUARY 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The name of the first respondent be amended to read 'Minister for Immigration and Citizenship'. 2. The appeal be dismissed. 3. 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 1789 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZGAM First Appellant SZGAN Second Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: LINDGREN J DATE: 19 FEBRUARY 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The appellants appeal against a judgment of the Federal Magistrates Court Australia given on 1 September 2006 ([2006]) FMCA 1281) by which that Court dismissed an application for review of a decision of the Refugee Review Tribunal ('the Tribunal'), which has filed a submitting appearance on this appeal. The Tribunal had affirmed a decision of a delegate of the first respondent (respectively 'the Delegate' and 'the Minister') not to grant protection visas to the appellants. 2 The appellants, husband and wife, are nationals of the People's Republic of China. They arrived in Australia on 22 August 2004 and applied for the protection visas on 5 October 2004. The wife, appellant SZGAM, made specific claims while her husband, SZGAN, relied on those of his wife. The Delegate refused the applications on 25 November 2004. The appellants applied to the Tribunal for review of the Delegate's decision on 21 December 2004. 3 There was a hearing before the Tribunal at which the appellants gave oral evidence on 15 February 2005. The Tribunal made its decision affirming the Delegate's decision on 17 February 2005 and the Tribunal's decision was handed down on 9 March 2005. 4 On 6 April 2005 the appellants filed an application in the Federal Magistrates Court under section 39B of the Judiciary Act 1903 (Cth) and s 475A of the Migration Act 1958 (Cth) ('the Act'). There was a hearing before the Federal Magistrates Court on 16 August 2006. The appellants appeared in person assisted by an interpreter. In substance, the wife, SZGAM, appeared on behalf of her husband, SZGAN. 5 The Federal Magistrate, McInnis FM, delivered judgment on 1 September 2006 and the notice of appeal against his decision was filed in this Court on 18 September 2006. 6 The notice of appeal raises two grounds: (1) that the Federal Magistrate "erred in law", and (2) that he was "wrong in finding that the … Tribunal acted properly in its findings". 7 The appellants filed submissions on the present appeal on 9 February 2007. In those submissions, they identify as the error of law relied on, that the Tribunal failed to comply with its obligations under s 424A(1) of the Act. Subsection 424A(1) provides: (1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. 8 However, subsection 424A(3) provides, relevantly: (3) This section does not apply to information: (a) ...; or (b) that the applicant gave for the purpose of the application; or (c) … . 9 In their submissions, the appellants also state that the Federal Magistrates Court erred in law by not recognising that the Tribunal had misstated their claims. 10 The appellants' claim was one of a fear of persecution by reason of political opinion, in particular, the activities of SZGAM as a member of an underground group called the China Freedom Union ('CFU'). In substance, the Tribunal was not satisfied that the appellant SZGAM was in fact a member of a political organisation in China to which she gave financial support, or that she was persecuted or feared persecution or left China for that reason. 11 Particular matters mentioned by the Tribunal were that: • appellant SZGAM had managed to establish a financially successful business in China and had continued to live at her address until she left China legally in August 2004 to come to Australia; • there was no evidence, apart, of course, from that given by the appellants, of the existence of the CFU; • appellant SZGAM's evidence that she left China hurriedly after a member of the CFU was arrested on 18 August 2004 was not consistent with the fact that the appellants had previously obtained visas for the United Kingdom in June 2004 and for Australia on 2 August 2004; and • if appellant SZGAM was of interest to the Chinese authorities, she would not have been able to leave China legally using a passport in her own name. 12 Before the Federal Magistrates Court the appellants attacked the adverse credibility findings made by the Tribunal and asserted a failure to comply with s 424A and s 425. As well, it was claimed that the Tribunal had failed to consider important country information. The Federal Magistrates Court gave reasons for rejecting these challenges to the Tribunal's decision, not all of which are pursued in the appellants' submissions to this Court. 13 There had been attached to the appellants' application to the Tribunal a statement of five pages dated 20 December 2004. In that statement appellant SZGAM stated that her "special role" in the CFU was eventually discovered by the Chinese authorities in August 2004 because of the arrest on 18 August 2004 of a person who had organised a secret meeting at his home with three key members of the underground organisation. In that statement, appellant SZGAM stated that another member of the CFU, who was not at home at that time was able to avoid arrest, and that it was that person who immediately informed appellant SZGAM that the arrests had taken place, as a result of which that person left China shortly afterwards. Appellant SZGAM gave evidence before the Tribunal that she hurriedly left China on 20 August 2004, and, as noted earlier, she arrived in Australia on 22 August 2004. 14 In the same statement, appellant SZGAM stated that since being in Australia, she has been informed that the CFU has been "totally destroyed by the PRC authorities" and that at least ten people have been arrested. In the statement she also said that she has been informed by family members in China that her home has been searched twice and the business of herself and her husband has been "sealed by the PRC authorities". 15 Appellant SZGAM told the Tribunal that she hurried to leave China because she smelled danger, although in fact she had already smelled danger back in June 2004. The Tribunal asked appellant SZGAM why she delayed leaving China for so long after obtaining a visa for the United Kingdom in June 2004, and a visa for Australia some three weeks prior to her departure on 20 August 2004. She said that she and her husband had a successful business and did not wish to leave China, and that they had obtained the visas because they were afraid something might happen so they "just watched and waited". 16 The information as to leaving China to arrive in Australia on 22 August 2004, prompted by the arrests four days earlier on 18 August 2004 was information that the appellants had provided to the Tribunal for the purpose of their application. In my view it was not required that the question of inconsistency between those circumstances and other aspects of the appellants' case be put to the appellants by the Tribunal in advance of the hearing. 17 Nor do I see how the Tribunal misstated the appellants' claims. The appellants submit that the Tribunal failed to consider that the special role of appellant SZGAM in the CFU was not discovered by the PRC authorities at the time when she left the country. This, however, was not the particular claim that the Tribunal disbelieved. The particular claim which it rejected was that the appellants were prompted to leave China in haste by reason of the arrests that had occurred on 18 August. 18 In their submissions, the appellants also contend that the Tribunal failed to consider the claim that since they have come to Australia, the CFU has been virtually destroyed by the PRC authorities, but this particular claim is expressly referred to in the Tribunal's reasons for decision. 19 Finally, according to the submissions, the Tribunal failed to consider the fact that the appellants' daughter was studying in the United Kingdom and that the appellants' original purpose for going overseas was just to visit their daughter, but this particular claim is also expressly referred to in the Tribunal's reasons for decision ("the applicant [appellant SZGAM] stated that she obtained her passport in 2002 because she intended to visit her daughter"). 20 Ms McWilliam of counsel for the Minister has drawn my attention to the High Court's decision delivered since the judgment of the Federal Magistrates Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592, in which it was held (at [44]) that it was a failure to accord procedural fairness not to provide a sufficient opportunity to give evidence or make submissions about what turned out to be the determinative issues arising in relation to a Tribunal decision under review. 21 In the present case, however, the appellants were aware from the Delegate's decision that there was an issue as to whether the claimed membership of appellant SZGAM of the CFU was accepted. 22 I do not think that the appellants have established error on the part of the Federal Magistrate. It follows that the appeal should be dismissed with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 9 March 2007 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondent: Ms V McWilliam Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 19 February 2007 Date of Judgment: 19 February 2007