SZJCC v Minister for Immigration & Citizenship [2007] FCA 950

FEDERAL COURT OF AUSTRALIA

SZJCC v Minister for Immigration &Citizenship [2007] FCA 950 Migration Act 1958 (Cth), s 424A SZJCC v MINISTER FOR IMMIGRATION & CITIZENSHIP & ANOR NSD420 OF 2007

EMMETT J

8 MAY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD420 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJCC

Appellant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EMMETT J DATE OF ORDER: 8 MAY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The name of the First Respondent be changed to Minister for Immigration and Citizenship. 2. The appeal be dismissed. 3. The Appellant pay the First Respondent's costs in the sum of $3000. 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 NSD420 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJCC

Appellant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EMMETT J

DATE: 8 MAY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant has brought an appeal from orders of the Federal Magistrates Court dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal). The appellant is a citizen of the Peoples Republic of China. He arrived in Australia on 28 January 2006 and applied for a protection (class XA) visa under the Migration Act 1958 (Cth) (the Act) on 6 February 2006. A delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister), as the Minister was then known, refused to grant a visa on 1 March 2006. The appellant then applied to the Tribunal on 3 April 2006 for review of the delegate's decision. On 29 June 2006 the Tribunal affirmed the decision not to grant a protection visa to the appellant. 2 On 21 July 2006 the appellant commenced a proceeding in the Federal Magistrates Court seeking Constitutional writ relief in respect of the Tribunal's decision. An amended application was filed on 9 November 2006. On 27 February 2007 the Federal Magistrates Court ordered that the application be dismissed and ordered the appellant to pay the Minister's costs. The appeal to this Court was brought by notice of appeal filed on 19 March 2007. 3 The appellant appeared in person with the assistance of an interpreter on the hearing of the appeal. He was unable to advance any submissions in support of the appeal. The thrust of his complaint was that he was not permitted by the Federal Magistrates Court to talk about all of the details of his case. He said that he was told by the Federal Magistrates Court that the Court did not have jurisdiction to deal with all the details of his case. 4 When asked by me to address his appeal, the appellant said that he would like to talk about the details of his case and would like the Court to consider his feelings. The appellant claimed before the Tribunal that he feared persecution if he returned to China on the basis that, while he was not a Falun Gong practitioner, other Falun Gong practitioners had informed the Chinese authorities that he was a Falun Gong practitioner and that he was their leader. He claimed that his wife was interviewed in their home and was affected as a consequence. 5 In its reasons, the Tribunal indicated that it discussed with the appellant the circumstances of his travel to Australia, noting that the passport that he had brought to the Tribunal for the purposes of a hearing had been issued on 9 June 2006, only a few days previously. The appellant told the Tribunal that the passport had been issued to replace a passport issued in 2005 on which he had travelled to Australia. The Tribunal informed the appellant that the fact that he had been able without difficulty to obtain a normal replacement passport in Sydney indicated that he was not of interest to the Chinese authorities. The Tribunal considered that the idea that Falun Gong practitioners would inform the Chinese authorities that the appellant was their local leader when he was not a Falun Gong practitioner was not credible. 6 The Tribunal also considered a proposition advanced by the appellant that he and his wife were subject to interviews by police from 1999 to 2005 without ever having been detained or charged as he claimed. The Tribunal considered that, having regard to the notorious harshness with which Falun Gong practitioners are treated, that was unlikely and lacking in credibility. Since the appellant was able to obtain a passport and leave China and a new passport was able to be obtained in Sydney when the first was lost, the Tribunal did not accept that he was either arrested or tortured in China as he claimed. 7 The appellant claimed that his wife was a Falun Gong practitioner. However, his wife has apparently not been arrested or obliged to attend re-education classes. The Tribunal therefore did not accept that she is known to be a Falun Gong practitioner or that she has been of any interest to the Chinese authorities. The Tribunal, therefore, concluded that the appellant did not have a well founded fear of persecution in China for a Convention reason. 8 In his amended application to the Federal Magistrates Court the grounds were as follows: "(1) The Tribunal had bias against me and did not believe my claims without giving reasons. The Tribunal failed to consider my claims, and therefore failed to consider my application according to section 91R of the Migration Act. (2) My application was refused at my hearing with the Tribunal. I have not been notified the reason or part of the reason for affirming the decision according to section 424A of the Migration Act. The Tribunal was required to provide particulars of the information that was the reason or part of the reason for affirming the decision and was required to explain why the information was relevant and provide me with an opportunity to comment on it. (3) The above particulars had to be provided in writing." No particulars were furnished of those grounds. 9 The reasons of the Federal Magistrates Court indicate that careful consideration was given to the grounds alleged and in particular to the possible application of s 424A of the Act. The primary judge considered the transcript of the evidence before the Tribunal in order to determine whether or not there was a possible contravention of s 424A. Her Honour carefully analysed the authorities and concluded that there was no contravention. 10 The grounds of the notice of appeal to this Court are unhelpful. They are as follows: "(1) The decision involved an important [sic] exercise of the power conferred by the Migration Act and Regulations. (2) The Tribunal failed to give procedural to give procedural fairness. (3) The making of the decision is biased." No particulars are furnished in the notice of appeal and no written submissions were provided by the appellant to the Court. 11 The first ground leads nowhere, without any particulars. An allegation of bad faith is not lightly made and must be clearly alleged and proved. The primary judge found nothing in the material before the Court to establish actual or apparent bias. Her Honour considered that the credibility findings were open on the material before the Tribunal. Her Honour also found that the appellant had positively confirmed in his evidence to the Tribunal that he obtained his 2005 passport without difficulty and accordingly concluded that the exception in s 424A(3)(b) applied to that information. 12 The primary judge also considered oral arguments raised by the appellant that were not foreshadowed in his formal application for judicial review or in his amended application. Her Honour found no error on the part of the Tribunal in not seeking further information from the appellant concerning the circumstances in which his passport had been issued to him in China. Her Honour concluded there was no reason for the Tribunal to have further explored the circumstances of its issue, given that the appellant had confirmed that it was issued without difficulty and that that was one of the issues that the delegate had relied upon in rejecting the application for a protection visa. The Tribunal provided an opportunity to the appellant to volunteer any further information. Her Honour was of the view that the requirements of s 424 had been met having regard to the way in which the hearing was conducted. 13 There was no error on the part of the Federal Magistrates Court in reaching the conclusion that it did. It follows that the appeal must be dismissed. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.