SZKBI v Minister for Immigration and Citizenship [2008] FCA 93

FEDERAL COURT OF AUSTRALIA

SZKBI v Minister for Immigration and Citizenship [2008] FCA 93

SZKBI v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 2015 OF 2007

STONE J

18 february 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2015 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKBI

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: STONE J DATE OF ORDER: 18 FEBRUARY 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal in the amount of $1,700. 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 2015 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKBI

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: STONE J

DATE: 18 FEBRUARY 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate made on 25 September 2007; [2007] FMCA 1753. His Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal refusing the grant of a protection visa to the appellant, who is a citizen of the People's Republic of China. 2 The appellant claimed to have a well-founded fear of persecution as a Falun Gong practitioner who joined Falun Gong in 2000. He claimed that in July 2005 the police discovered he was a senior member of Falun Gong and, as a result, searched his house and detained him. He claimed that whilst in detention he was interrogated by police and suffered physical torture, eventually securing his release by paying a bribe. 3 With the assistance of an interpreter, the appellant appeared before the Tribunal at a hearing on 27 October 2006. The Tribunal questioned the appellant on his knowledge of Falun Gong at the hearing. Pursuant to s 424A of the Migration Act 1958 (Cth) the Tribunal wrote to the appellant on 30 October 2006 inviting him to comment on inadequacies and conflicts that the Tribunal found in the account the appellant gave to the Tribunal. The respondent replied by letter dated 22 November 2006 but failed to resolve significant inconsistencies. 4 In its reasons for decision the Tribunal said that the appellant showed little to no knowledge of the basic practices and exercises of a practitioner of Falun Gong, and on that basis, was not satisfied that the appellant was a practitioner either at a basic or advanced level. The Tribunal also found the appellant to be evasive in his answers to a number of questions regarding his circumstances in Australia and that the answers he provided regarding his family were implausible. The Tribunal found that the appellant had provided untruthful accounts of his circumstances in China, his family composition, his employment history and his circumstances since arriving in Australia. In short, the Tribunal did not believe the appellant. Having rejected the appellant's claims to be a Falun Gong practitioner and a person of interest to the Chinese authorities when he departed China, the Tribunal found his claim of fear of persecution for Convention-related reasons was not well-founded. 5 Before the Federal Magistrate, the appellant asserted the Tribunal failed to refer to proper independent country information; that the Tribunal decision was biased; that it failed to assess the chance of persecution on return to China; and that the Tribunal did not believe the appellant's claims because it had relied on incorrect information. 6 The Federal Magistrate considered the grounds put forward by the appellant but found they did not establish jurisdictional error. The Federal Magistrate also took into consideration that the appellant was not legally represented and independently considered whether the Tribunal's decision disclosed any arguable case of jurisdictional error. His Honour concluded: In my view the Tribunal based its decision on credibility grounds. The Tribunal did not accept the applicant's evidence. The Tribunal based that finding on its comparison of the applicant's claims with independent country information about Falun Gong and put information to the applicant in a letter written to comply with s 424A of the Migration Act. The applicant replied in writing and the Tribunal considered the applicant's replies. There is no breach of s 424A of the Migration Act. The Tribunal invited the applicant to attend a hearing to give evidence and present arguments about his case. The applicant attended the hearing and gave evidence with the assistance of an interpreter. The Tribunal did not accept the applicant's evidence that he was a Falun Gong practitioner and feared persecution for that basis if he returned to China. 7 His Honour determined that the Tribunal's reasons did not disclose any jurisdictional error and dismissed the application. 8 By Notice of Appeal filed on 9 October 2007 the appellant seeks to appeal the decision of the Federal Magistrate on three grounds, although those grounds in truth comprise five elements. At the hearing of the appeal the appellant was not able to assist the Court with any submissions in support of his appeal. Such submissions as he made were directed to a review of the merits of his application which is, of course, beyond the jurisdiction of this Court. 9 The first ground asserts that the Tribunal failed to refer to sufficient independent information and did not provide adequate particulars of the independent information to the appellant. Neither of these elements was pleaded before the Federal Magistrate and consequently the appellant requires the leave of the Court to raise them in this appeal. Given that I consider that neither has any prospect of success, nor raises any issue of general importance, I decline to grant leave. I note, however, that the Tribunal did consider independent country information and was not provided with any other information of that nature by the appellant. I also draw attention to the exemption from the requirements of s 424A provided in s 424A(3)(a) of the Act. 10 The second ground of appeal alleges that the Tribunal was biased against the appellant and asserts that the Tribunal failed to consider the appellant's claims and failed to consider his application in accordance with s 91R of the Act. 11 The appellant conceded that he adduced no evidence of bias on the part of the Tribunal before the Federal Magistrates Court and none was proffered at the appeal. An allegation of bias is very serious. It must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531. The appellant failed to do so and the Tribunal's reasons do not disclose any indication of bias. 12 I also reject the submission that the Tribunal did not consider the appellant's application carefully or that it was in breach of s 91R. The appellant's submission on this point was no more than an invitation for the Court to review his application on the merits. 13 The Tribunal's reasons give ample evidence of having considered the appellant's claims carefully and the s 424A letter of 30 October 2006 confirms the point. Similarly I do not accept the claim, made in ground 3 of the Notice of Appeal, that the Tribunal failed to assess the appellant's chance of persecution on his return to China. 14 I agree with the Federal Magistrate that the decision of the Tribunal discloses no jurisdictional error. It was open to the Tribunal to make adverse findings in relation to the credibility of the appellant's evidence, in particular, its finding that it did not accept that the appellant was a Falun Gong practitioner. Its finding that the appellant had no well-founded fear of persecution for a Convention reason was open to it on the evidence. 15 In my view the Federal Magistrate was correct to reject the application for review and, accordingly, the appeal must be dismissed. 16 The first respondent has sought costs of the appeal in the fixed amount of $1,700. Taking into account the preparation of appeal books, the respondent's written submissions and attendance at Court for the hearing of the appeal I regard the amount as reasonable and will order accordingly. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.