SZLDW v Minister for Immigration & Citizenship [2008] FCA 871

FEDERAL COURT OF AUSTRALIA

SZLDW v Minister for Immigration & Citizenship [2008] FCA 871

Migration Act 1958 (Cth) s 424A SZLDW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 405 OF 2008

BUCHANAN J

11 JUNE 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 405 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLDW

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BUCHANAN J

DATE OF ORDER: 11 JUNE 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

The appeal is dismissed with costs. 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 405 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLDW

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BUCHANAN J

DATE: 11 JUNE 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT BUCHANAN J: 1 The appellant is a citizen of the People's Republic of China who arrived in Australia on 9 February 2007 and applied for a Protection (Class XA) visa on 16 February 2007. A delegate of the Minister refused the application for a protection visa on 26 February 2007. 2 On 3 April 2007 the appellant applied to the Refugee Review Tribunal ('the RRT') for a review of the delegate's decision. At the conclusion of a hearing held before the RRT on 12 July 2007, it announced its decision that the delegate's decision was affirmed and later published written reasons. 3 The appellant claimed before the RRT to have been a Falun Gong practitioner. The RRT recorded his claims in the following way: 'Primary claims The applicant stated in his primary application that, before 1999, he had practiced Falun Gong in a group of about 12 people. After the crackdown on Falun Gong practitioners in 1999, his group leader was arrested and imprisoned for 2 years. He and others signed a confession but he continued to practice underground. He stated that he feared that, sooner or later, his underground practice would be discovered, possible by his practice being revealed to authorities by a neighbour who was arrested. Oral claims At hearing, the applicant stated that he had joined a practice group in Sydney. In response to a question, he said he had started to practice Falun Gong in 1999 but not in the year it was banned. When I pointed out to him that that was the year it was banned, he stated that he could not remember. I asked him what was the falun and he did not know. He answered correctly what colour it was but could answer no other questions about Falun Gong beliefs. When I commented that he seemed to know nothing about Falun Gong, he said that he had not read the book and just practiced the exercises to get fit. I commented that parks in China were full of people doing exercises and the authorities took no notice of them. They were only interested in Falun Gong practitioners. I asked the applicant why he thought he would be persecuted if he returned to China. He said that, since arising in Australia, he had learned that his group's leader had been arrested.' 4 The RRT's assessment of those claims was stated as follows: 'I do not accept that the applicant is or has ever been a practitioner of Falun Gong. His ignorance of Falun Gong beliefs is so comprehensive that I do not accept that he would run any risk of incurring harm amounting to persecution should he return to China. Nor do I accept that he has suffered any persecution in the past. I do not accept that a person whose only interest is in keeping fit would run risk of arrest by practicing exercises frowned on by the authorities. There are too many alternatives readily available. In this sense, the applicant's claims are simply not credible. Thus, I do not accept that he has been arrested or beaten or subject to on-going harassment of any kind from authorities as a result of practice of Falun Gong or that there is a real chance that he would suffer any of these things should he return to China. I find that the applicant does not have a well founded fear of persecution in China for reason of his membership of a particular social group or for any other Convention reason.' 5 On 8 August 2007 the appellant made an application for judicial review of the RRT before the Federal Magistrates Court of Australia ('the FMCA'). The grounds of the application were expressed as follows: '1. The RRT constructively failed to exercise its jurisdiction. The RRT failed to conduct a real, rather than purported exercise of its jurisdiction to determine whether the applicant was a Falun Gong practitioner as he claimed. The RRT also failed to conduct a proper hearing. The applicant attended a hearing on 12 July 2007 but was unable to fully present his oral evidence as the hearing was curtly ended in less than half an hour. 2. The RRT failed to afford the applicant procedural fairness as it failed to invite the applicant to comment on information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review. By failing to invite the applicant to comment the Tribunal acted in breach of the S424A of the Act.' 6 As to the first ground the FMCA said (SZLDW v Minister for Immigration & Anor [2008] FMCA 319 at [11]): 'The applicant bears the onus of showing that he was denied a fair hearing or that the invitation he received to attend the hearing was not a real or meaningful invitation. In the absence of any evidence other than the Tribunal's decision record which, it must be observed, contains nothing to support a finding that the applicant had been denied a proper hearing, the applicant has failed to discharge his onus of proof.' 7 The FMCA rejected the unparticularised allegation of breach of s 424A of the Migration Act 1958 (Cth) ('the Act'), noting that the information relied upon by the RRT was information provided by the appellant himself which, accordingly, 'falls within the exception found in s 424A(3)(b) of the Act'. 8 The FMCA also dealt with an argument presented orally by the appellant that the RRT had acted 'capriciously and arbitrarily'. The FMCA said:` 'A consideration of the Tribunal's decision reveals that it dealt with the facts admittedly in a brief way, but nevertheless with sufficient particularity and clarity that it can be concluded that the Tribunal's decision was a reasoned one.' 9 The FMCA was satisfied that no jurisdictional error had been demonstrated and dismissed the application for judicial review. Against that judgment the present appeal was brought on 25 March 2008. The grounds of appeal are identical to the grounds for the application for judicial review before the FMCA. No allegation is made of error in the judgment of the FMCA. In order to succeed on the present appeal it would be necessary for the appellant to show both error in the judgment of the FMCA and jurisdictional error in the decision or proceedings of the RRT. It may be accepted, of course, that the appellant's allegation is that the FMCA should have come to a different overall conclusion but an appeal to this Court is not given simply so that a litigant may restate claims and hope for a better result. 10 The appellant filed no written submissions in support of his appeal. In a short oral submission he complained, as he had before the FMCA, that the hearing was unreasonably short and added a further complaint that he was not asked by the RRT to demonstrate any Falun Gong exercises. Neither of these complaints raised any jurisdictional error in the decision or processes of the RRT. The fairness of a hearing cannot be determined by the application of some arbitrary standard time. A good deal of information can be exchanged in the period of 20 – 25 minutes that the RRT record shows as the length of the oral hearing on 12 July 2007 (9.50am – 10.10am; 10.30am – 10.35am). I can see no error in the rejection by the FMCA of this complaint. As to the complaint advanced at the hearing of the appeal that the RRT did not seek a demonstration of Falun Gong exercises by the appellant, no jurisdictional error in the RRT's processes is revealed by such a circumstance. On the basis of the enquiries which it did make the RRT was not persuaded the appellant was a genuine Falun Gong practitioner. That was a conclusion which was open to it. 11 Making every allowance for the fact that the appellant was unrepresented he has failed to identify any jurisdictional error in the decision of the RRT. It follows that there is no error in the conclusion of the FMCA that the application for judicial review should be dismissed. The present appeal must be dismissed. It is appropriate to dismiss it with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.