FEDERAL COURT OF AUSTRALIA SZKGS v Minister for Immigration and Citizenship [2007] FCA 1955 MIGRATION – visa – protection visa – tribunal relied in reasons for decision on information from sources other than appellant – information about stringency of rules for issuing and renewing passports in China – tribunal did not give notice to appellant about the information – whether tribunal required to give notice – whether information related to a class of persons of which appellant a member – class of persons applying for passports or persons leaving China – no notice required MIGRATION – visa – protection visa – procedural fairness – failure to provide information to tribunal, because of lack of facility with English – whether denial of opportunity to present case – tribunal did not deny appellant opportunity to present whatever information he wished Migration Act 1958 (Cth) ss 5(1), 36, 91R, 424A Convention relating to the Status of Refugees done at Geneva on 28 July 1951 Protocol relating to the Status of Refugees done at New York on 31 January 1967 SZKGS v Minister for Immigration & Anor [2007] FMCA 1549 SZKGS v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1730 OF 2007 GRAY J 19 NOVEMBER 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1730 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZKGS Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GRAY J DATE OF ORDER: 19 NOVEMBER 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, fixed at $2,500. 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 1730 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZKGS Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GRAY J DATE: 19 NOVEMBER 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This appeal is from a judgment of the Federal Magistrates Court in SZKGS v Minister for Immigration & Anor [2007] FMCA 1549. The learned Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"), affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (now the Minister for Immigration and Citizenship, the first respondent) (in both cases, "the Minister"), refusing to grant to the appellant a protection visa. The appellant has raised several issues about the correctness of the Tribunal's decision, some of which, if made out, might raise jurisdictional error. 2 Section 36 of the Migration Act 1958 (Cth) ("the Migration Act") provides that there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be 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. The terms Refugees Convention and Refugees Protocol are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call both of these documents taken together the "Convention". 3 The appellant arrived in Australia on 10 September 2006, in possession of a valid visa. On 3 October 2006, he applied to what was then called the Department of Immigration and Multicultural and Indigenous Affairs for a protection visa. His application was considered by a delegate of the Minister and rejected in a decision made on 19 October 2006. The appellant applied to the Tribunal for review of that decision. The Tribunal conducted a hearing on 3 January 2007, at which the appellant attended and gave evidence and made submissions. On 8 January 2007, the Tribunal signed a decision, which was handed down on 25 January 2007. The Tribunal affirmed the decision not to grant the appellant a protection visa. 4 The appellant then applied to the Federal Magistrates Court, seeking a writ of certiorari to quash the Tribunal's decision, a writ of mandamus compelling the Tribunal to hear and determine the application according to law and a writ of prohibition directed to the Minister to prevent action being taken in reliance on the Tribunal's decision. His amended application to the Federal Magistrates Court contained effectively three grounds. The first was that the Tribunal was biased against him and failed to consider his claims. The second was that the Tribunal failed to assess the chance of the appellant being persecuted on his return to China because of his practice of Falun Gong. The third was that the Tribunal failed to give the appellant notice, in accordance with s 424A of the Migration Act, of particulars of information that formed part of the reason for affirming the decision of the Minister's delegate. None of these grounds was accompanied by any particulars. The Federal Magistrate rejected all of the grounds. In addition, the appellant appears to have argued before the Federal Magistrates Court that the Tribunal had failed to comply with s 91R of the Migration Act, which contains a definition of persecution and examples of the sorts of things that constitute serious harm for the purposes of that definition. 5 The appellant's claims depended upon the proposition that he was a Falun Gong practitioner. He said that he had been arrested, detained and tortured in China and had lost his job because of practising Falun Gong. The Tribunal accepted that Falun Gong might be considered to be a religion, and that those practising Falun Gong might constitute a particular social group for the purposes of the application of the Convention. The Tribunal also accepted that Falun Gong practitioners face persecution in China and that such persecution is for a Convention reason. 6 The Tribunal was not satisfied that the appellant was involved with Falun Gong as he claimed. In particular, the Tribunal made the following findings: The Tribunal finds that the applicant's knowledge of Falun Gong was extremely limited and not consistent with the level of knowledge that may be expected from a practitioner of more than ten years. For this reason, the Tribunal does not accept that the applicant was a Falun Gong practitioner or that he had at any time practised the exercises. … The Tribunal does not accept that the applicant has practised Falun Gong in Australia, either in public or in private or that he was engaged with Falun Gong in any other manner in Australia. The Tribunal finds that the applicant is not a genuine Falun Gong practitioner and that if he returns to China now or in the foreseeable future, he will not engage in the practice of Falun Gong. The Tribunal finds that the applicant will not face persecution in China now or in the reasonably foreseeable future because of his involvement with, or the practise [sic] of, Falun Gong. As the Tribunal found that the applicant was not involved in the practise [sic] of Falun Gong in the past, the Tribunal also rejects the applicant's claim that he was detained by the authorities in 1999 and in 2004 as a Falun Gong practitioner or that he was subsequently interrogated or monitored by the police. … The Tribunal does not accept the applicant's claim that he had lost his job in 1997 as a result of being a Falun Gong practitioner. … The Tribunal rejects the applicant's claim that he was on a black list with the Chinese authorities. When asked how he was able to obtain a passport and depart the country lawfully, the applicant claimed that perhaps the blacklist [sic] was only a local one and his name was not on the internet and the authorities were unaware of the applicant being on a black list. The Tribunal does not accept that explanation. The independent country information cited above suggests that there are stringent procedures involved in issuing passports. The Tribunal does not accept that the applicant was able to obtain the passport only because he paid a bribe. The Tribunal does not accept that the applicant is on the "black list" or that he is of any interest to the authorities. … As the Tribunal found that the applicant was not engaged in the practise [sic] of Falun Gong in China, the Tribunal does not accept that the applicant's spouse lost her job and that his child had difficulties with schooling for the reason of the applicant's involvement with Falun Gong. 7 For these reasons, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution as a Falun Gong practitioner if he should return to China. 8 Although expressed differently, the three grounds appearing in the notice of appeal from the Federal Magistrate's judgment are similar in substance to the grounds of the appellant's amended application in the Federal Magistrates Court. The grounds of appeal are: 1. The Tribunal failed to consider my claims for my application for a protection visa because of the Tribunal's bias towards me. 2. The Tribunal also committed jurisdictional error by failing to give me in accordance with S424A of the Migration Act 1958 notice in writing of particulars of information that formed part of the reasons for affirming the decision of the delegate. 3. The Tribunal failed to assess the chance of the persecution I would suffer on my return to China. 9 In addition to these grounds, the appellant mentioned in the course of the appeal s 91R of the Migration Act, and argued that he was denied the opportunity to present his case in the Tribunal. These are grounds not raised in the Federal Magistrates Court, although s 91R was apparently argued in that court. The appellant would need leave to raise additional grounds. Leave would only be granted if he were able to show that he had an arguable case in relation to such a ground. 10 In relation to the ground of bias there can be no question that the Federal Magistrate was correct in rejecting the proposition that the Tribunal displayed apprehended bias towards the appellant. The Federal Magistrate applied the correct test at [13] of his reasons for judgment, ie whether a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided. Both in the Federal Magistrates Court and in this Court the ground of bias was not particularised and no specific reference was made to anything said or done by the Tribunal that would indicate anything other than impartiality on its part. The appellant did not invite the Federal Magistrates Court or this Court to look at the transcript of the hearing of the Tribunal to see whether the Tribunal had displayed antipathy towards the appellant. The appellant's argument on this ground seems to stem from the fact that the Tribunal rejected his claims. The mere rejection of a claim cannot itself demonstrate bias. Even though the Tribunal made adverse findings as to the appellant's credit and expressed them in firm terms, it cannot be said that the Tribunal was biased against him. When the Tribunal's reasons are examined, it can be seen that it had ample reason for making its findings that the appellant was not a credible witness. 11 The ground invoking s 424A of the Migration Act requires closer examination. Section 424A so far as relevant to this proceeding provides: (1) Subject to subsection (3), the Tribunal must: (a) give to the applicant…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. … (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; 12 The Tribunal sent to the appellant a letter dated 5 December 2006, inviting him to comment on certain items of information. These included the facts that: his passport was issued on 28 April 2006; his Australian visa was issued in September 2006; he was issued with visas for Malaysia, Singapore and Hong Kong in 2006; and in his application for a protection visa, he stated that he left China legally. The Tribunal's letter said that this information was relevant as it may indicate that the appellant was of no interest to the Chinese authorities as a Falun Gong practitioner or for any other reason. The information may also cause the Tribunal to question the credibility and the authenticity of the appellant's claims. Further, when applying for a protection visa, the appellant had stated that he worked at a plastics factory from 1989 to 2006. He was issued with a short stay business visa to travel to Australia on 1 September 2006, on the basis that he intended to travel to Australia for business purposes, related to his employment or business activities in China. The Tribunal thought this information was relevant as: it may indicate that he was able to engage in employment or business activities in China until his departure for Australia, which may indicate that he was of no interest to the Chinese authorities as a Falun Gong practitioner; it might have caused the Tribunal to reject his claim that his wife had lost her job because of his engagement in Falun Gong activities; and it might also have caused the Tribunal to question his credibility and the authenticity of his claims. Finally, the Tribunal's letter referred to information that the appellant was granted visas for Malaysia, Thailand, Singapore and Hong Kong. He travelled to these countries in 2006, did not seek asylum, and returned to China after each trip. The Tribunal considered this information to be relevant as it might have indicated that he did not have a well-founded fear of persecution in China and might have caused the Tribunal to question his credibility and the authenticity of his claims. The appellant replied briefly to this letter, by letter dated 28 December 2006. In essence, he did not contest any of the factual issues referred to in the letter of 5 December. He asserted that his purpose was to seek protection from the Australian Government and he would not be able to get protection from any other country except Australia. 13 The Federal Magistrate dealt very briefly with the ground raising failure to comply with s 424A. His Honour drew attention to the fact that no particulars were provided and that it had not been shown that the letter of 5 December 2006 did not comply with s 424A. On that basis, his Honour rejected the appellant's application on that ground. 14 In its reasons for decision, under the heading "Evidence from other sources", the Tribunal dealt with information it had received other than from the appellant. That information falls into two parts. The first part concerns the nature of Falun Gong and the manner in which China's authorities deal with Falun Gong practitioners in China. That information might be said to have assisted the appellant in establishing his claim. The other part of the information was described by the Tribunal in the following terms: With respect to exit procedures operating in China, the available sources indicate that freedom to travel overseas is generally the case, although passports are difficult to obtain for certain classes of dissident. More recently, following the defection in May 2005 of a political affairs counsellor at the Chinese consulate in Sydney and his applying for asylum in Australia, the media reported that China's rules for issuing and renewing passports was becoming more stringent. The sources also indicate that the Chinese government maintains lists of people wanted by the authorities for whom arrest warrants have been issued. These lists are usually called "wanted lists" or "most wanted lists". 15 In a footnote to this passage in its reasons for decision, the Tribunal cited a number of sources apparently relied on to support these propositions. It is clear that the information summarised in this way was part of the reason for affirming the decision under review, in the Tribunal's view. This is made apparent by the sentence in the Tribunal's reasons for decision: The independent country information cited above suggests that there are stringent procedures involved in issuing passports. It is also clear from the rest of the paragraph in which that sentence appeared that the Tribunal relied on the information about "wanted lists" and "most wanted lists" to reject the appellant's claim that he was on a blacklist, in the light of the fact that the appellant was able to obtain a passport. 16 The information therefore falls within s 424A(1) of the Migration Act, unless excluded by s 424A(3)(a). The Tribunal did not give to the appellant notice in the form required by s 424A(1) about this information. The information was plainly not specifically about the appellant or about any other relevant person, and is not about a class of persons of which any other relevant person is a member. Accepting as I do that the remaining words of s 424A(3)(a) impose an additional requirement and do not merely amplify the opening words of that paragraph, the question is whether the information was just about a class of persons of which the appellant was a member. In my view, the appellant could be said to have been a member of a class of persons described as "persons applying for passports". He could also have been said to belong to a class of persons described as "persons leaving China". The information that the greater stringency about issuing and renewing passports followed the defection of a political affairs counsellor at the Chinese Consulate in Sydney in May 2005, can be viewed as the Tribunal's recital of the reason for greater stringency. On this view, the information about issuing and renewing passports and the information about wanted lists, or most wanted lists, fell within s 424A(3)(a). Section 424A(1) did not apply to it, therefore. The Tribunal was not obliged to give particulars of the information to the appellant or to invite him to comment on it. 17 In the result, the narrow view taken by the Federal Magistrate of the s 424A ground did not affect the result of the application before the Federal Magistrates Court. The appellant has not demonstrated error on the part of the Federal Magistrate that would entitle him to succeed on appeal. 18 The Federal Magistrate dealt briefly, but correctly, with the ground that the Tribunal failed to assess the chance of persecution, should the appellant return to China. As his Honour pointed out, the Tribunal did consider the issue and determined against the appellant that there was no real chance that he would face any harm because of his alleged involvement with Falun Gong, or his alleged practice of Falun Gong, or his alleged association with Falun Gong practitioners, or for any other Convention-related reason. The appellant merely seeks to overturn the factual findings of the Tribunal. Neither the Federal Magistrates Court, nor this Court, can overturn those factual findings. 19 Similarly, the Federal Magistrate appears to have dealt correctly with the allegation that the Tribunal failed to comply with s 91R of the Migration Act. Although the appellant referred to that section, he never articulated how it was that the Tribunal failed to apply it correctly. The Tribunal referred to the section in its reasons for decision. There is nothing to indicate that it misapplied the section or that it misunderstood the nature of persecution. 20 This brings me to the final matter argued on this appeal. This was that the appellant was denied a proper opportunity to present his case. The appellant said that the questions asked of him by the Tribunal did not permit him to expand sufficiently on his case. The appellant told me that he received assistance in preparing his original application for a protection visa from a bilingual friend, to whom he was introduced, who apparently had some experience in assisting people with applications for visas. When the appellant applied for a protection visa, that person typed various parts of the application form and an accompanying statement for which the appellant provided the information. The same person assisted the appellant with his application to the Tribunal for review of the decision of the delegate of the Minister, and with the letter of 28 December 2006, in which the appellant responded to the letter of 5 December 2006 from the Tribunal. 21 In the course of the hearing of the appeal I took the appellant in some detail to the information that was particularised in the letter of 5 December. He told me that the reason he did not apply for asylum in the countries he visited in 2006, other than Australia, was that he visited those countries as part of a tourist group. The tour guide had possession of his passport and he did not have the opportunity to use it to apply for asylum in those countries. The appellant did not tell the Tribunal this. He agreed with me, however, that nothing that the Tribunal did or failed to do deprived him of the opportunity to tell the Tribunal this. Although the appellant may have been hampered by his lack of English and perhaps by the inadequacy of the English of his friend who typed the letter of 28 December 2006, and his failure to tell the Tribunal the full story in that letter may have been the result of these disadvantages, the appellant agreed that these matters were not the fault of the Tribunal. 22 I also drew the appellant's attention to the way in which the Tribunal summarised in its reasons for decision the evidence at the Tribunal hearing in relation to these matters. That summary contains the following: The Tribunal noted that the applicant's passport indicated that the applicant travelled to Malaysia, Singapore and Hong Kong in 2006. The Tribunal asked the applicant for the purpose of this travel. The applicant said that he was following one of his friends to have a look at these countries because it was hard to stay at his hometown, so he was looking for another place to stay. His friend paid for the trips. The Tribunal asked the applicant why he returned to China after each of these trips if he was fearful about living in China. The applicant said that he was told it was hard to survive and to get a job in those places and there was no good protection. The appellant agreed with me that these questions were asked in the Tribunal hearing and that he could have told the Tribunal that the tour leader had possession of his passport and that this was the reason why he did not apply for asylum in those countries. He agreed that it was not the fault of the Tribunal that he did not provide the Tribunal with this information. 23 In the circumstances, it is clear that nothing that the Tribunal did or failed to do denied the appellant the opportunity to present his case. Certainly he was at a disadvantage because of his lack of English and his lack of familiarity with the procedures of the Tribunal. This is a disadvantage shared by many applicants for visas. It does not mean that they lack the opportunity to put their case adequately before the Tribunal. The existence of disadvantage does not mean that the Tribunal denies to applicants a proper opportunity to present their cases. To the extent to which the appellant would need leave to amend his grounds to make this case on appeal, leave should be refused because the appellant could not succeed on this ground. 24 For these reasons, the appeal must be dismissed. 25 Consequent upon my announcement that the appeal would be dismissed, counsel for the Minister sought an order that the appellant pay the Minister's costs of the appeal. The appellant did not advance any reason, and none appears from the nature of the case, why I should not apply the usual principle that costs follow the event. Counsel for the first respondent invited me to fix the amount of costs at $2,800. Although this figure is within the reasonable compass of costs for an appeal of this nature, I propose to discount it somewhat, because counsel for the first respondent did not appear to be in a position fully to argue one of the grounds of appeal. The appellant suggested that it would be wrong for me to fix the amount. I consider that the appellant may well find it more economical if I fix the amount at $2,500 today than he would if the additional costs of taxation of costs before the registrar were incurred. 26 The orders that I make will therefore be: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal, fixed at $2,500. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 12 December 2007 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondent: Mr R White Solicitor for the Respondent: Sparke Helmore Date of Hearing: 19 November 2007 Date of Judgment: 19 November 2007