SZLTU v Minister for Immigration & Citizenship [2008] FCA 1209

FEDERAL COURT OF AUSTRALIA

SZLTU v Minister for Immigration & Citizenship [2008] FCA 1209

SZLTU v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 555 of 2008

JESSUP J

5 AUGUST 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 555 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLTU

Appellant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: JESSUP J DATE OF ORDER: 5 AUGUST 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the costs of the first respondent. 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 555 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLTU

Appellant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: JESSUP J

DATE: 5 AUGUST 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court given on 8 April 2008 dismissing an application by the appellant for orders in the nature of certiorari, mandamus and prohibition in relation to a decision by the Refugee Review Tribunal ("the Tribunal"), signed on 29 October 2007 and handed down on 20 November 2007. In that decision, the Tribunal affirmed the decision of a delegate of the Minister not to grant a Protection (Class XA) Visa to the appellant pursuant to the Migration Act 1958 (Cth) ("the Act"). The second respondent is the Tribunal and has filed a submitting appearance. 2 The basis upon which the appellant claims to fear persecution should he return to the country of his citizenship, China, is that he was, before he left that country in June 2007, a Falun Gong practitioner. He claims that during his time in China, amongst other things, he was required to attend what he described as "brainwashing classes" and was beaten and insulted by the police. 3 Although inadequately disclosed in his Notice of Appeal filed on 21 April 2008, in submissions made to me this morning the appellant has relied upon four grounds in his challenge to the judgment of the Federal Magistrate. First, he submits that the decision of the Tribunal was attended by what he describes as "obvious bias." Secondly, he submits that the Minister's department did not follow s 91R of the Act, and he implies that the Tribunal likewise failed to observe s 91R. Thirdly, he submits that the Tribunal made its decision without first giving him written particulars of information which would put him on notice of the grounds upon which it proposed to reject his application for review. In this respect, although his submissions originally referred to a section which does not exist, namely s 44A, the appellant clarified with me that he intended to rely upon s 424A, a provision of the Act which makes this point intelligible. Fourthly, the appellant submits that the Tribunal did not fairly consider the possibility of him suffering further persecution if he were to return to China. Although apparently not articulated below in quite the same way as they were here, these grounds were advanced by the appellant before the Federal Magistrate and were dealt with by his Honour. 4 In relation to the submission that the Tribunal was biased against the appellant, his Honour observed that that submission was not reflected in the grounds articulated in his application for review in that court. His Honour continued: The reason given by the Applicant as to why the Tribunal is biased does not establish bias and the Tribunal's decision record does not establish any bias. Bias or bad faith involves a serious allegation which must be strictly alleged and strictly proved. His Honour referred to authorities in that regard and continued: There is no evidence of any bias whatsoever. In the hearing of the appeal this morning, I had the interpreter read to the applicant the relevant passages in his Honour's reasons, and I invited the appellant to respond to them or to make a further submission about them. He said nothing further on this subject. His Notice of Appeal in this court does not contend that his Honour was in error to have rejected his allegation of bias, yet he repeated it in his submissions this morning with no particulars or elaboration. It is an allegation which was from the outset, and which remains, utterly groundless and should never have been made. 5 With respect to the appellant's submission as to what is said to be a failure to follow s 91R of the Act, I likewise have the advantage of a short treatment of the point in the reasons of the Federal Magistrate. His Honour said that the appellant had then submitted that the Tribunal had judged his case on an assumption rather than in accordance with s 91R. The appellant's Notice of Appeal makes no reference to any relevant error on the part of his Honour. As pointed out by Ms Quinn this morning, who represented the Minister, s 91R(1) is in the nature of a definitional provision which gives content to the concept of persecution for the purposes of the obligations of decision-makers under the Act. It was completely uncontroversial in the circumstances of the present case for the reason, as pointed out by Ms Quinn, that the underlying factual basis of the appellant's case before the Tribunal was rejected. 6 With respect to s 424A of the Act, I had the interpreter read to the appellant in Chinese the following paragraphs in the reasons of the Federal Magistrate: The Applicant's second ground is a claim that the Tribunal breached the requirements of s.424A of the Migration Act. The Tribunal based its decision on two factors: (a) Independent Country Information; and (b) The Applicant's own evidence to the Tribunal. Neither of those matters enlivens the provisions of s.424A(1) of the Migration Act. Independent Country Information is specifically excluded by the provisions of s.424A(3)(a) of the Act and the Applicant's own evidence is specifically excluded by s.424A(3)(b) of the Migration Act. There is no breach of s.424A of the Migration Act. Having been given an opportunity to make a submission about, or to respond to, those paragraphs, the appellant did not do so. His point with respect to s 424A was directly dealt with by his Honour, and he has made no intelligible attempt to establish that the way in which his Honour disposed of the point was erroneous. If the appellant is to be understood as complaining that he was not given advance notice of the Tribunal's reasons for rejecting his application for review, that is not a subject with which s 424A deals. The section is concerned with the Tribunal's likely reasons only to the extent that they are based on information of the kind referred to in it and of a kind that is not excluded by subsection (3). This ground of appeal must also therefore be rejected. 7 The appellant confirmed with me this morning that his fourth point, namely that the Tribunal did not fairly consider the possibility of his suffering persecution if he returned to China, was the same as that dealt with by the Federal Magistrate in the following paragraphs of his Honour's reasons, which I also had the interpreter read to the appellant in Chinese: Dealing with the grounds in the amended application first of all, whilst the Applicant claimed that the Tribunal failed to consider the fact that he had been practising Falun Gong in Australia and that his activities in Australia would cause persecution to him on his return to China, it was a consistent feature in both the Applicant's claim for a visa to the delegate and the Applicant's evidence to the Tribunal hearing that he had not practised Falun Gong in Australia. Indeed, the Tribunal asked him about that very point, saying: The Tribunal asked the applicant if he had been involved with Falun Gong since he arrived in Australia and he claimed that he had not. He claimed that he saw some people practising in Chinatown but did not know how to get into the group. The Tribunal suggested that he might go up and ask one of the practitioners and he claimed that he had no time. Asked if he had tried to contact another group he claimed that he did not know how to. The Tribunal put the applicant that it did not appear that he had a genuine commitment to Falun Gong if he had not been motivated to find a group to join or even to practise since he had been in Australia. In my view, the first ground in the Applicant's amended application must fail because it is factually incorrect. The Tribunal did not consider the fact that the Applicant had been practising Falun Gong in Australia because he specifically told the Tribunal that he had not been so practising. The appellant's response to these paragraphs in his Honour's reasons was to inform me that he had been practising Falun Gong in Australia, at Chinatown, Hyde Park and Darling Harbour. He accepted that he had not run his case before the Federal Magistrate on that factual basis. I explained to him that this is a court of appellate jurisdiction, which would normally operate by reference to the evidence led in the hearing below. He gave me to believe that he understood that circumstance. I also explained to him that the question, even for the Federal Magistrate, was not whether the appellant had practised Falun Gong in Australia, but rather whether the Tribunal had fallen into jurisdictional error by paying no attention to such a circumstance. Quite clearly, the appellant ran his case before the Federal Magistrate by reference to the findings of the Tribunal that he had made it clear to it that he had not practised Falun Gong in Australia, in which circumstances, the Federal Magistrate's conclusion, set out in the paragraph which I have extracted above, was not only correct but inevitable. 8 If this fourth point advanced by the appellant today is intended to refer to something broader than the fairly narrow circumstance as to the Tribunal's conclusions about the appellant's practice of Falun Gong in Australia or otherwise, it appears not to have been developed before the Federal Magistrate. As it happens, however, the proposition that the Tribunal did not fairly consider the possibility that the appellant might be persecuted if he were to return to China is manifestly without substance. The whole of the appellant's case before the Tribunal was based upon the assertion that he had a considerable history of practising Falun Gong in China. It was necessarily that practice which would have sustained any further conclusion that he might suffer persecution were he to be obliged to return to China. The Tribunal said: The applicant claims that he would participate in Falun Gong if he were to return to China because of its physical health benefits. As the Tribunal has found that the applicant is not a Falun Gong practitioner and does not have a genuine belief in or commitment to Falun Gong, it follows that the Tribunal is not satisfied that the applicant would practice Falun Gong if he returns to China. The Tribunal proceeded to express a compendious conclusion that the appellant did not suffer persecution in the past and would not face a real chance of being persecuted now or in the reasonably foreseeable future if he returned to China. 9 For the reasons I have expressed, this appeal must be dismissed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.