FEDERAL COURT OF AUSTRALIA SZGHZ v Minister for Immigration and Citizenship [2007] FCA 1437 SZGHZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 629 OF 2007 GRAHAM J 14 AUGUST 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 629 OF 2007 BETWEEN: SZGHZ Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GRAHAM J DATE OF ORDER: 14 AUGUST 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. 'Refugee Review Tribunal' be added as a second respondent to the applicant's application for leave to appeal filed 12 April 2007. 2. The application for leave to appeal filed 12 April 2007 be dismissed. 3. The applicant pay the respondent Minister's costs fixed in the sum of $1,400. 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 629 OF 2007 BETWEEN: SZGHZ Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GRAHAM J DATE: 14 AUGUST 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant was born in Hebei in the People's Republic of China on 27 February 1971. According to an application for a Protection (Class XA) visa which he lodged on 31 December 2004 it is said by the applicant that his year of birth was in fact 1972 rather than 1971. The applicant arrived in Australia on 21 December 2004. His application for a Protection (Class XA) visa was refused by a Delegate of the Minister on 13 January 2005. 2 On 1 February 2005 the applicant applied to the Refugee Review Tribunal ('the Tribunal') for review of the Minister's Delegate's decision. On 21 February 2005 the applicant was invited to a hearing of the Tribunal on 23 March 2005 to give oral evidence and present arguments in support of his claims. 3 In his application for a Protection (Class XA) visa he answered questions 40 to 44 collectively. Those questions were: '40 Why did you leave that country? 41 What do you fear may happen to you if you go back to that country? 42 Who do you think may harm/mistreat you if you go back? 43 Why do you think this will happen to you if you go back? 44 Do you think the authorities of that country can and will protect you if you go back? If not, why not?' 4 In response to these questions the applicant stated: 'My wife is the head of Falungong in our town, and influenced by her, I became a Falungong member in 1999 after it has (sic) been denounced to be an evil religious group. My wife used to have very bad health, after practicing Falungong for a period of time, she became healthy again and she was very active to promote Falungong to our neighbors, friends and people around as she strongly believes in Falungong after her actual experiences from Falungong. She became the leader in our town, and in September 2003, she was detained and was sentenced to two year imprisonment. As her husband, after she was put into jail, I became the head of our town and continued to organize Falungong activities. In August 2004, when we were practicing Falungong, police came to arrest us. I was detained for 4 days and suffered both mentally and physically. I was released 4 days later. However, I had to report to local police once a week; I lost freedom and basic human rights. With the help of my friend, I came to Australia for protection. I hope that my application can be considered favorably.' 5 The initial decision of the Tribunal, constituted by Tribunal Member Wyndham, of 23 March 2005 which was handed down on 15 April 2005 affirmed the decision of the Minister's Delegate not to grant the applicant a protection visa. That decision was the subject of an application for constitutional writ relief in the Federal Magistrates Court of Australia. Following a hearing on 26 June 2006 Federal Magistrate Nicholls ordered on 21 August 2006 that a writ of certiorari issue quashing the decision of the Tribunal and that a writ of mandamus issue requiring the Tribunal to re-determine the matter according to law. 6 Thereupon, a further invitation was extended to the applicant by the Tribunal to come to a hearing to give oral evidence and present evidence in support of his claims by letter dated 9 October 2006. The appointed hearing date was 3 November 2006. The applicant responded to the invitation on 16 October 2006 indicating that he wanted to come to the hearing and needed the assistance of a Mandarin interpreter. 7 Following a hearing on 3 November 2006, which lasted for little over an hour, a letter was sent to the applicant by the Tribunal on the same day inviting him to comment on information provided to him in the Tribunal's letter. By letter dated 16 November 2006 the applicant responded to the Tribunal's letter of 3 November 2006. 8 On 17 November 2006 the Tribunal, constituted by Tribunal Member Inder, affirmed the decision of the Minister's Delegate not to grant the applicant a Protection (Class XA) visa. That decision was handed down on 7 December 2006. 9 On 3 January 2007 the applicant filed an Application under Rule 44.05 of the Federal Magistrates Court Rules 2001 seeking constitutional writ relief in respect of the second decision of the Tribunal in relation to his Application for review. The grounds relied upon in the Application as originally filed were as follows: '1. The Tribunal failed to consider my claims. The TRibunal had bias against me and refused my application without evidence and materials. The Tribunal did not consider my application for a protection visa according to S91R of the Migration Act 1958. 2. The Tribunal failed to assess the chance of my persecution on my return to china based on my membership with Falun Gong. The Tribunal had bias against me and failed to assess the chance based on assumption, not evidence. 3. The Tribunal relied upon irrelevant material. …' 10 On 16 March 2007, the applicant filed an Amended Application under Rule 44.05 of the Federal Magistrates Court Rules 2001. The grounds of the application were, on this occasion, expressed as follows: '1. The tribunal did not have enough evidence and materials to refuse my application. The Tribunal had bias against me and the decision was induced by actual bias of the officer. 2. The Tribunal failed to assess the chance of my persecution on my return to china based on my membership with Falungong. The Tribunal failed to consider my application according to S91R of the Migration Act 1958. 3. The Tribunal relied on some out to date (sic) independent information for the consideration of my application.' 11 Section 91R of the Migration Act 1958 (Cth) ('the Act') relevantly provided: '91R(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct.' In s 91R(2) a number of instances of what constitutes 'serious harm' are provided. 12 Part 44 of the Federal Magistrates Court Rules 2001 is entitled 'Proceedings under the Migration Act 1958'. Division 44.1 has as its heading 'Preliminary'. Division 44.2 has as its heading 'Matters commenced in the Court'. Division 44.3 has as its heading 'Matters remitted by the High Court' and Division 44.4 has as its heading 'General'. The applicant's Amended Application filed 16 March 2007 was brought under Rule 44.05 which relevantly provided: '44.05(1) An application for a remedy to be granted in exercise of the Court's jurisdiction under section 476 of the Migration Act in relation to a migration decision must be made in accordance with the approved form.' 13 Rule 44.12, which itself has the heading 'Show cause hearing', falls within Division 44.4. Relevantly 44.12(1)(a) provided: '44.12(1) At a hearing of an application for an order to show cause, the Court may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application; or … (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.' 14 When the applicant's Amended Application came before the Court constituted by Federal Magistrate Smith on 27 March 2007, his Honour ordered that the application be dismissed under Rule 44.12 on the ground that it did not raise an arguable case for the relief claimed. His Honour also ordered the applicant to pay the respondent Minister's costs in the sum of $2,300. It is in respect of that interlocutory decision that the applicant has filed his application for leave to appeal which is presently before the Court. 15 In support of his application the applicant has read an affidavit of himself sworn 12 April 2007 which does not relevantly advert to the decision of the Federal Magistrate. The affidavit provided: 'The Tribunal failed to consider my claims for my application for a protection visa. The decision to refuse my application was not made based on evidence and materials. The Tribunal failed to assess the chance of my persecution on my return to china based on my membership with Falun Gong. Fedeal (sic) Magistrates court dismissed my application on the ground that it does not raise an arguable case for the relief claims (sic). I believe that the Tribunal did make the above mentioned jurisdictional errors when considered (sic) my application for a protection visa. The Tribunal failed to consider my application in accordance with S91R of the Migration Act 1958' 16 On the hearing of his application today the applicant tendered a draft Notice of Appeal on which he would wish to rely, were leave to appeal granted. It contained grounds expressed as follows: '2. The Tribunal had bias against me and fialed (sic) to consider my claims. The decision to refuse my application was not made based on evidence and materials 3. The Tribunal failed to assess the chance of my persecution on my return to china based on my membership with Falun Gong. 4. Federal Magistrates dismissed my application on the ground that it does not raise an arguable case for the relief claims (sic). I believe that the Tribunal did make the above mentioned jurisdictional errors.' 17 The relief proposed in the draft Notice of Appeal was not directed at setting aside the order of the Federal Magistrates Court made in accordance with Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001, but at securing in effect the constitutional writ relief that might be ordered were the application for constitutional writ relief to have proceeded to a hearing and been decided favourably to the applicant. 18 The applicant elected not to file any written submissions in support of his application. When invited to present oral submissions he asked the Mandarin interpreter, who was assisting him, to translate a document which he had with him, which recorded what he wanted to say about the matter. The effect of his oral submissions can be summarised as follows: The Tribunal did not make its decision according to s 91R of the Act. It did not consider the applicant's reasons for his application. It did not consider independent country information appropriately. The applicant felt that this represented bias on the part of the Tribunal. The Tribunal did not provide the applicant with reasons why his application had been refused. The Tribunal Member dismissed his application by reference to irrelevant information. The applicant would be persecuted if he returned to China. The Tribunal member did not believe the applicant to be a true Falun Gong practitioner. In this regard the Tribunal Member made a pre-judgment not based on the evidence. 19 It is important to remember that proceedings before the Tribunal are inquisitorial rather than adversarial. 20 The Tribunal Member conducting an inquiry is obliged to be fair. However, the Tribunal is not in a position of a contradictor of what is being advanced by an applicant. In a case such as that brought by the applicant under his application for review to the Tribunal it was for him to advance whatever evidence or argument he wished to advance, and for the Tribunal to decide whether his claim that he was a refugee within the meaning of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (collectively referred to as 'the Refugees Convention') had been made out. 21 The Tribunal was not obliged to prompt and stimulate an elaboration, which the applicant may have chosen not to embark upon. 22 For a grant of leave to appeal to be made it is necessary for the applicant to establish that the decision of Federal Magistrate Smith was attended with sufficient doubt to warrant its reconsideration, and that substantial injustice would result if leave were refused. 23 Dealing with the three grounds relied upon by the applicant in his Amended Application, filed 16 March 2007, Federal Magistrate Smith said (see SZGHZ v Minister for Immigration [2007] FMCA 569 at [15]) in respect of the first point identified in ground 1: '15. The proposition that the Tribunal "did not have enough evidence and materials to refuse my application" is wrongly premised as to the question which the Tribunal had to decide. This was whether it was satisfied that the applicant met the Convention definition of refugee, not whether it had evidence that he was not a refugee. The applicant's evidence did not satisfy the Tribunal as to the truth of his claims. In my opinion, this conclusion is not open to any arguable complaint of jurisdictional error.' 24 In my opinion nothing has been submitted by the applicant to indicate that this finding by the learned Federal Magistrate was attended with any doubt. Under s 65(1)(a)(ii) of the Act the Minister is to grant a visa if satisfied that: 'the other criteria for it prescribed by this Act or the regulations have been satisfied;' If not so satisfied the Minister is required by s 65(1)(b) to refuse to grant a visa. In relation to an application for a protection visa the relevant criterion is to be found in s 36(2)(a) of the Act, which is expressed as follows: '36(2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; …' 25 In relation to the second matter raised in the first ground within the Amended Application and both matters raised in the second ground, the learned Federal Magistrate said at [14]: '14. I am unable to see any substance in the complaints that the Tribunal had bias, or failed to assess the chance of the applicant facing persecution, or made any legal error.' 26 In relation to the matter raised in the third ground contained in the Amended Application, the learned Federal Magistrate said at [16]: '16. The reference in ground 3 to the Tribunal's reliance on "some out to date independent information" is not explained, and I am unable to give it any substance. 27 In the Tribunal's 'STATEMENT OF DECISION AND REASONS' of 17 November 2006, the Tribunal set out in detail the claims made at the Tribunal hearing by the applicant, and dealt with the subsequent correspondence and the applicant's response to it. It then proceeded to set out in five closely-typed pages its findings and reasons, together with its conclusions. The Tribunal concluded that the applicant was not a Falun Gong practitioner and was not a credible witness. In his reasons for judgment, the learned Federal Magistrate said at [12]: '12. Although the reasoning of the Tribunal is somewhat tortuous, I do not think it is arguable that it has failed to make a genuine effort to determine the issue of credibility with which it was faced. In short, it had a claimant without corroborative evidence, claiming little involvement in Falun Gong, either in China or Australia, who travelled on an apparently valid and easily obtained passport. I can see no argument with any prospects of success that would indicate that the Tribunal's conclusions on his credibility were not open to it.' 28 It seems clear to me that the applicant has failed to establish that the decision of Federal Magistrate Smith was attended with sufficient doubt to warrant its reconsideration. Federal Magistrate Smith was not satisfied that the Amended Application, filed 16 March 2007, had raised an arguable case for the relief claimed by the applicant. Accordingly, he dismissed the application. Nothing has been put by the applicant which would warrant a grant of leave to appeal from that decision. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate: Dated: 12 September 2007 The Applicant appeared in person. Solicitor for the First and Second Respondents: L Leerdam of DLA Phillips Fox Date of Hearing: 14 August 2007 Date of Judgment: 14 August 2007