SZKMK v Minister for Immigration and Citizenship [2007] FCA 2042

FEDERAL COURT OF AUSTRALIA

SZKMK v Minister for Immigration and Citizenship [2007] FCA 2042

SZKMK v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1661 OF 2007

DOWSETT J

21 NOVEMBER 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1661 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKMK

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: DOWSETT J

DATE OF ORDER: 21 NOVEMBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. the appeal be dismissed; and 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 1661 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKMK

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: DOWSETT J

DATE: 21 NOVEMBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant, who is a citizen of China, arrived in Australia on 15 August 2006, departed on 31 August 2006 and returned on the same day. On 28 November 2006 the appellant applied for a protection visa. A delegate of the first respondent (the "Minister") refused that application. The second respondent (the "Tribunal") affirmed that decision. The appellant unsuccessfully sought review in the Federal Magistrates Court. He now appeals from the Federal Magistrate's decision. 2 The appellant entered Australia on 15 August 2006 on a sub-class 457 visa. That visa is for temporary residence whilst the holder works for an approved business sponsor. The Tribunal questioned the appellant about his application for that visa and concluded, perhaps with some encouragement from the appellant, that there was a degree of exaggeration in it. However the Tribunal expressly disavowed any reliance upon that matter in determining the application for a protection visa. That decision appears to have been based entirely upon information provided to the Tribunal in the course of a hearing on 13 February 2007. 3 The appellant claimed to fear persecution in China because he practises Falun Gong. He commenced such practice in China prior to coming to Australia. He claimed to have been arrested in China for reason of such practice. He alleged that he was interrogated, detained for 24 hours, tortured and then released. He said that he was required to attend "brain washing" classes. He told the Tribunal that he had not been involved with Falun Gong since his arrival in Sydney on 31 August 2006. When asked why not, he said that he did not know how to contact the relevant organisation. It was pointed out to him that Falun Gong practitioners were very active in Sydney. He said that he had received a leaflet about it and had seen Falun Gong exercises being practised. He did not know why he had done nothing about practising in Australia. 4 The appellant told the Tribunal that he left Australia on 31 August 2006 and travelled to Singapore, presumably to return to China, but he in fact returned to Australia on the same day. He said that in Singapore he received a telephone call from, or alternatively made a telephone call to, somebody in China who told him that he should not return, apparently because of his prior involvement with Falun Gong. The Tribunal considered that he had not explained why he had not applied for a protection visa immediately upon his return to Australia. He also was unable, in the Tribunal's view, to give a convincing account of his activities in connection with Falun Gong in China. The Tribunal considered that there was some inconsistency in his account of the circumstances in which he claimed to have been arrested in China and then released. The Tribunal also considered that he had been unable to explain the values of Falun Gong, or to name any one of the five exercises practised by Falun Gong adherents. In those circumstances the Tribunal rejected his claim to have been a Falun Gong practitioner in China and his claim to have been questioned, detained and mistreated for reason of such practice. It also rejected his assertion that he had been told, whilst in Singapore, that the police were looking for him in China. It found no real chance that he would be persecuted if he were to return to China. 5 The appellant's amended application to the Federal Magistrates Court raised the following grounds: '1. The Tribunal had bias against me failed to consider the claims of my application. The Tribunal wrongly believed that I had not suffered any Convention-based persecution in the past. 2. The Tribunal failed to notify me in writing the reason or part of the reasons for affirming the decision. The Tribunal therefore failed to consider my application for a protection visa in accordance with section 424A of the Migration Act 1958. I was not given an opportunity to comment upon the reason.' 6 Before the Federal Magistrate the appellant asserted that the Tribunal had demonstrated, from the beginning of the hearing, that it did not believe that he was a Falun Gong practitioner. As to bias, the Federal Magistrate considered that it was unclear whether he was alleging actual or apprehended bias, but found no evidence of either. His Honour considered that the assertion that the Tribunal had wrongly found that the appellant had not suffered Convention-based persecution, was simply an attempt to appeal on the merits. As to the alleged breach of s 424A, the Federal Magistrate concluded that the Tribunal's decision was based upon information provided by the appellant in the course of the hearing. 7 His Honour also dealt with other grounds which emerged in the course of argument, namely that the Tribunal had misconceived his claims, had not followed proper procedures and had not provided reasons or evidence for its reasons. These grounds were not addressed on appeal. The Federal Magistrate dismissed them all upon the basis that they were plainly without substance or particularity. His Honour dealt with these matters at [20]-[25] of the reasons. They need not concern me here. 8 The grounds of the present appeal are as follows: '1. The Tribunal had bias against me and failed to consider my claims. 2. The Tribunal referred to proper independent information for the consideration of my application. 3. The Tribunal failed to carry out its statutory duty. The Tribunal had not notified me the reason or part of the reasons for affirming the decision. I was not given an opportunity to comment upon the reasons for affirming the decision. The application was not considered in accordance with S 424A of the Migration Act 1958.' 9 As to his reliance upon s 424A, the appellant has misconceived the ambit of the section. He has taken it to mean that he is entitled to have the proposed reasons for refusing the application provided to him, in advance, for comment. Section 424A is not to that effect. 10 I asked the appellant to identify any information which ought to have been provided to him, or any document which, he says, should have been provided to him. I use the word "document" rather than "information" because the appellant's argument appeared to focus on documents. However he was unable to identify any document or non-documentary information to which s 424A might apply. It is clear from the Tribunal's reasons that the Federal Magistrate was correct in concluding that the decision was based upon information provided by the appellant in the course of the hearing. 11 The appellant again raised the allegation of bias on the basis that the Tribunal simply did not believe him. However there is no evidence to justify any allegation of real or apprehended bias. The appellant claimed that the Tribunal's attitude had made him nervous. That does not amount to bias or any other form of jurisdictional error. He said that the Tribunal refused the application without giving reasons. The submission is simply incorrect. The Tribunal did not believe the appellant for reasons which were identified. It was said that the Tribunal provided no rebutting evidence. It was not obliged to do so. It may be that ground 2 of the notice of appeal is really a complaint that the Tribunal did not refer to 'proper independent information'. However no attempt has been made to identify information which ought to have been forthcoming and, in any event, it would have been to no avail, given the Tribunal's rejection of the appellant's claims. 12 The appellant also complained that the Tribunal had focused on irrelevant evidence, namely the appellant's previous work history, especially in Australia. I do not accept that this matter was necessarily irrelevant to the Tribunal's task. It may well be relevant that a person has entered Australia on one visa and then sought a protection visa. Of course I accept that it would be very difficult for a genuine refugee to make a claim for a protection visa whilst in his or her state or origin. Nonetheless, the circumstances in which an appellant enters Australia will frequently be relevant. This was particularly so in the present case where a third party was involved, namely a potential employer. In any event, the Tribunal clearly put that matter out of its consideration when it determined the question of the appellant's entitlement to a protection visa. There was therefore no jurisdiction error in that regard. All of the other grounds appear to be misconceptions, or based on misconceptions. 13 The appeal must be dismissed. I order that the appellant pay the first respondent's costs fixed at $2500. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.