FEDERAL COURT OF AUSTRALIA SZFTM v Minister for Immigration and Citizenship [2007] FCA 644 SZFTM v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 191 OF 2007 BESANKO J 4 MAY 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 191 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZFTM Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BESANKO J DATE OF ORDER: 4 MAY 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal. 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 191 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZFTM Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BESANKO J DATE: 4 MAY 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal from orders made by a Federal Magistrate. On 2 February 2007 the Magistrate dismissed the appellant's application for constitutional writs directed to the Refugee Review Tribunal ("the Tribunal"). On an application for review, the Tribunal had affirmed a decision by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") not to grant a protection visa to the appellant. The facts 2 The appellant is a national of the People's Republic of China. He arrived in Australia on 22 January 2004. On 3 February 2004 he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) ("the Act"). On 9 February 2004 a delegate of the Minister refused to grant a protection visa to the appellant. On 15 March 2004 the appellant applied to the Tribunal for a review of that decision. 3 The appellant made a number of claims which were accepted by the Tribunal in the sense that it made findings in the appellant's favour. I will summarise those findings. The appellant was a Falun Gong practitioner in China. The Falun Gong does not have a hierarchy and the appellant played no organising role within it. The appellant and his family lived in the Namkai District of Tianjin and, at least until 2000, many practitioners of Falun Gong lived in this district and were closely monitored by the Public Security Bureau ("PSB") after the practice of Falun Gong was banned in 1999. 4 The appellant was briefly detained by the authorities in 1999. He signed an undertaking not to practise Falun Gong and he was required to pay a fine. 5 The appellant was not formally dismissed from his employment in a state-owned Tianjin grinding machine factory until 2003. However, he was not paid a full wage from 1997 because of financial problems experienced by the business, and he was not given any work after 1999. He obtained temporary employment in a hotel in 1997 and, subsequently, in various other workplaces. 6 In 2000 the appellant was told by the Street Committee in the Namkai District to attend classes every day and "say Falun Gong was no good" and not practise Falun Gong. The appellant attended a class on one occasion and then stopped and he suffered no punishment as a result of doing that. 7 The appellant was not subjected to any physical ill-treatment during his contact with the PSB in 1999 and he was not subsequently subjected to any physical harm because of the perception or knowledge that he practised Falun Gong. 8 The appellant was not detained or seriously harmed or harassed during his last four years or so in China and he was able to obtain a passport in his own name to leave and re‑enter China without coming into conflict with the authorities. 9 Apart from using a false document from a different workplace, the appellant followed the normal procedures to obtain a passport which meant, according to information accepted by the Tribunal, that he provided his genuine ID card and household registration papers (Hukou) to the Entry and Exit Bureau of the Ministry of Public Security. He was issued with a passport in his own name and he fell into none of the categories of citizens who were not allowed to leave China. 10 Over the years, the appellant was subjected to some discriminatory treatment because he had practised Falun Gong and this treatment involved difficulty in gaining permanent employment. 11 In addition to these findings, the Tribunal found that the appellant was not regarded by the authorities as a significant practitioner of Falun Gong, and the problems he had with the authorities were very minor in comparison with the serious punishment meted out to some practitioners of Falun Gong. The appellant did not modify his conduct in relation to his practise of Falun Gong. He did not change his practise and, if he continued to do the exercises, he did them at home as he had chosen to do before the practice of Falun Gong was banned. After attending one self-criticism "class" he simply stopped going, a decision which, despite his claim to have been fearful at the time, reflected some confidence that he would not suffer any adverse consequences. The same may be said of the appellant's decision to re-enter China in 2003 after travelling to several countries. The Tribunal found that the appellant did not modify his practise of Falun Gong or any related conduct because of a threat of harm. The Tribunal's reasons 12 In light of the findings it made (as set out above), the Tribunal considered whether the persecution involved serious harm to the appellant within the provisions of s 91R of the Act. The Tribunal referred to the revised explanatory memorandum to the legislation which introduced s 91R, and to observations made by McHugh J in Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1. The Tribunal concluded that the difficulties experienced by the appellant could not be categorised as "serious harm" within the provisions of s 91R. 13 The Tribunal considered whether the appellant had modified his conduct in relation to his practise of Falun Gong and, if so, whether that was influenced by a threat of harm. The Tribunal found that the appellant had not modified his conduct because of a threat of harm. The Tribunal concluded that whilst the appellant had suffered some discriminatory treatment which was reflected in the difficulty he experienced in finding employment with state-owned firms, it was not satisfied that the appellant was being subjected to treatment amounting to persecution before he left China. The Tribunal noted that the appellant had not claimed to have participated in any activities in Australia which might have changed the attitude of the authorities in China towards him. The Tribunal concluded that the appellant did not have a well-founded fear of "Convention-related" persecution in the People's Republic of China. The Tribunal affirmed the decision of the delegate not to grant a protection visa to the appellant. The Magistrate's reasons 14 The Magistrate said that a number of grounds in the appellant's application contained allegations and no particulars. She rejected those grounds of appeal. As to the appellant's challenge to the Tribunal's conclusion that the discriminatory treatment suffered by the appellant did not amount to "Convention-related" persecution, the Magistrate said that whether any particular harm met the description of "serious harm" was a question of fact and degree for the Tribunal, and that the findings made by the Tribunal were open on the material before the Tribunal and for the reasons it gave. 15 The Magistrate dealt with a complaint by the appellant that the Tribunal member who had heard his case was not the Tribunal member who had made the decision. The Magistrate noted that that appeared to be factually correct but said that that in itself did not establish a jurisdictional error on the part of the Tribunal. The Magistrate referred to s 422 of the Act, which provides that where a member conducting a particular review becomes unavailable, the Principal Member must direct another member to constitute the Tribunal for the purpose of finishing the review. The Magistrate referred to a related point which arises from this circumstance. On 21 July 2004 the Tribunal wrote to the appellant in the following terms: "The Member reviewing your case has asked me advise you as follows. The Member previously reviewing your case is no longer available and your case has now been constituted to another Tribunal Member, Ms Phillippa McIntosh. Please note that it is not clear yet whether a further hearing will be required. However, the Tribunal will inform you of the progress of your application in due course." 16 The next communication between the Tribunal and the appellant appears to have been on 22 November 2005 when the appellant contacted the Tribunal. A note of the Tribunal reads as follows: "22/11/04 Applicant called through TIS to find out when the decision is going to be made. Told him when the decision is made, the Tribunal will send him a letter informing him about it. LFlores." 17 The Tribunal wrote to the appellant on 18 January 2005 advising him that it had made its decision and that that decision would be handed down on 8 February 2005. 18 It was not suggested by the appellant that in writing the letter dated 21 July 2004 and then not inviting the appellant to a further hearing, the Tribunal acted in bad faith. The contention before the Magistrate was that there had been a denial of procedural fairness in the circumstances and the appellant referred to the decision of the High Court in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1. The Magistrate said that that decision was distinguishable because, unlike Applicant NAAF, it was not appropriate to infer from the letter of 21 July 2004 that the Tribunal member considered that without a further hearing the review process was incomplete. The Magistrate said that the Tribunal had not committed a jurisdictional error. Issues on appeal 19 The first ground of appeal is that the Magistrate erred in failing to conclude that the Tribunal committed a jurisdictional error in finding that the appellant had suffered from no punishment for attending only one class of denouncement of Falun Gong. This ground of appeal must be rejected. It appears not to have been a matter raised before the Magistrate. In any event, it is a complaint about a finding of fact. The finding of fact was open to the Tribunal and it cannot be said that in making the finding the Tribunal committed a jurisdictional error. 20 The second ground of appeal is that the Magistrate erred in concluding that the Tribunal had not committed a jurisdictional error in finding that the appellant was not subjected to any physical harm by any person because of the perception that he was a Falun Gong practitioner. Again, this does not appear to have been a matter raised before the Magistrate. In any event, it is a complaint about a finding of fact. The finding of fact was open to the Tribunal and it cannot be said that in making the finding the Tribunal committed a jurisdictional error. 21 The third ground of appeal challenges the Magistrate's conclusion as to two findings of fact made by the Tribunal. The first finding of fact is that the appellant was not regarded by the authorities in China as a significant practitioner of Falun Gong. The second finding of fact is that the appellant had not suffered serious harm within the provisions of s 91R of the Act. It would appear correct to say, as submitted by the first respondent, that the first finding of fact was not the subject of a challenge before the Magistrate. In any event, it is a finding of fact and there is no suggestion that it was not a finding open to the Tribunal on the evidence before it. The second finding of fact is, in the circumstances of this case, a question of fact or of mixed fact and law: Minister for Immigration and Multicultural and Indigenous Affairs v SZANS (2005) 141 FCR 586 at 594 [52]. In this case there is no suggestion that in making the finding the Tribunal misunderstood the legal test of what constitutes serious harm for the purposes of s 91R of the Act. The Tribunal did not commit a jurisdictional error in making the findings referred to in the third ground of appeal. 22 In his oral submissions before me, but not in the notice of appeal, the appellant again challenged the decision of the Tribunal on the basis that the Tribunal member who heard the evidence was not the Tribunal member who made the decision. As I have said, that was an issue considered by the Magistrate. Section 422 of the Act is the answer to this submission. Another member of the Tribunal may constitute the Tribunal for the purposes of finishing a review. No doubt the second member has the discretion as to whether the appellant should be given an opportunity to attend a further hearing. There is nothing in this case to suggest that the discretion was exercised in a manner which involved jurisdictional error. The reasons of the Tribunal indicate that the member who made the decision read the transcript of the hearing, or listened to the tape of the hearing. Furthermore, the member who made the decision, generally speaking, accepted the appellant's evidence. Conclusion 23 In my opinion, no error in the reasoning of the Magistrate has been identified, and the appeal must be dismissed. The appellant must pay the first respondent's costs of the appeal. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 4 May 2007 The Appellant appeared in person. Counsel for the Respondent: Mr D Godwin Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 1 May 2007 Date of Judgment: 4 May 2007