FEDERAL COURT OF AUSTRALIA

SZHMV v Minister for Immigration and Multicultural Affairs [2006] FCA 926

SZHMV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ANOR

NSD 911 OF 2006

GRAHAM J

14 JULY 2006

SYDNEY

ON APPEAL FROM A MAGISTRATE IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The description of the respondent be altered to read ‘Minister for Immigration and Multicultural Affairs’.

2.         The Refugee Review Tribunal be added as a second respondent.

3.         The appeal be dismissed.

4.         The appellant pay the costs of the first respondent fixed by agreement in the sum of $3,000.00.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A MAGISTRATE IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of the Federal Magistrates Court of Australia handed down on 5 May 2006.  The appellant, who is identified for the purposes of these proceedings as SZHMV, was apparently born in China on 16 February 1984.  She arrived in Australia in May 2001 to study English and undertake year 12 of a secondary education.  Before the Refugee Review Tribunal (‘the Tribunal’) she asserted that her father had been detained in the People's Republic of China in December 2001 because he was a Falun Gong practitioner.

2                     In February to April 2002 the appellant returned to China for a holiday.  On 8 June 2005 the appellant was placed in detention in accordance with the provisions of s 189 of the Migration Act 1958 (Cth) (‘the Act’).  The appellant says that in July 2005 her father was placed in detention in China for a second time because he was said to be a Falun Gong practitioner.

3                     The appellant applied for a Protection (Class XA) visa on 1 August 2005.  This application was refused by the Minister's delegate on 10 August 2005. 

4                     On 11 August 2005 the appellant applied to the Tribunal for review of the Minister's delegate's decision.  The appellant was afforded a hearing before the Tribunal on 8 September 2005.  That hearing proceeded for in excess of two and a half hours. 

5                     On 28 October 2005 the Tribunal forwarded a copy of the Tribunal's decision of 27 October 2005 to the appellant.  That decision was to affirm the decision of the Minister's delegate not to grant a protection visa to the appellant. 

6                     On 4 November 2005 the appellant filed an application in the Federal Magistrates Court of Australia which was said to be made under s 39B of the Judiciary Act 1903 (Cth) and s 475A of the Act.

7                     That application did not in terms seek constitutional writ relief in respect of the decision of the Tribunal and did not articulate grounds suggesting jurisdictional error on the part of the Tribunal.  The application recorded the appellant's claims as:

‘I disagree the (RRT) Tribunal affirms the decision.  I am a Falun Gong practitioner.  My parents also a practitioner.  I think in legal procedure the RRT give me the decision is not correct.’

8                     The grounds of the application were expressed, inter alia, as follows:

‘If I returns to China I will face persecution because my parents are Falun Gong practitioners ... Now.  The Tribunal affirms the decision not to grant a protection visa.  I disagree this decision.  Something wrong in legal procedure.  So I apply for Federal Court.  The Tribunal doesn't accept that my parents and me are Falun Gong practitioners.  They don't any evidence.  Now.  My family have big trouble.  That's not enough?  Must be dead someone!’

9                     It will be evident from the manner in which the application to the Federal Magistrates Court was expressed that there were no proper grounds upon which the Court could have granted relief favourable to the appellant. 

10                  In the ‘Findings and Reasons’ of the Tribunal the following appears:

‘... The applicant says that she is a Falun Gong practitioner and fears that she will be harmed for this reason.  In assessing the applicant's Convention claims the Tribunal is required to determine whether she has a well-founded fear and if so whether what she fears amounts to persecution for a Convention reason.

...

The applicant gave evidence to the Tribunal in a forthright and confident manner but the Tribunal has concerns about the credibility of material aspects of her claims.  The Tribunal is of the view that she has fabricated claims in an attempt to create for herself the profile of a refugee.

...

On the basis of the knowledge she has demonstrated the Tribunal accepts that the applicant has learned something of Falun Gong and it accepts that she can undertake the exercise regime with ease.  On the basis of the applicant's oral evidence the Tribunal does not accept that the applicant is a genuine Falun Gong practitioner and does not accept that she practised Falun Gong regularly at sites in Sydney prior to her detention in June 2005.  ... The Tribunal finds that the applicant is not a genuine Falun Gong practitioner and concludes that she has fabricated this claim in order to create for herself the profile of a refugee.  The Tribunal does not accept that she would practise Falun Gong if she returns to China. ... The Tribunal finds there is no real chance that the applicant will suffer serious harm amounting to persecution in China for the reason that she is a Falun Gong practitioner.’

11                  The Tribunal proceeded to consider claims made by the appellant by reference to her claims that her parents had been Falun Gong practitioners in China.  The Tribunal concluded:

‘… The Tribunal does not accept that the applicant's parents are Falun Gong practitioners in China.  It therefore does not accept that there is a real chance that the applicant will suffer serious harm amounting to persecution because of her parents’ Falun Gong practice or because she herself is a genuine Falun Gong practitioner.

On the basis of the evidence before it the Tribunal finds that there is not a real chance that the applicant will suffer persecution in China for any Convention reason.  She is not a refugee.’

12                  In the circumstances the Tribunal concluded that it was not satisfied that the appellant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol.  Accordingly, the Tribunal found that the appellant did not satisfy the criterion set out in section 36(2) of the Act for a protection visa.

13                  It is acknowledged by the appellant that she was assisted in the preparation of her application for a protection visa by an officer of the Legal Aid Commission of New South Wales.  She was further assisted by an officer of the Legal Aid Commission in the preparation of her application for review to the Tribunal.  When the appellant presented her case before the learned Federal Magistrate on 12 April 2006 she confirmed that she had received legal advice from a panel adviser and discussed her case with that adviser at the Villawood Immigration Detention Centre.  That adviser apparently declined to accept a brief to appear for the appellant on the hearing of her application before the Federal Magistrates Court.

14                  On 5 May 2006 the learned Federal Magistrate dismissed the appellant's application which had been filed on 4 November 2005 and made an order for payment by the appellant of the Minister's costs and disbursements. 

15                  Notwithstanding the assistance which the appellant had obtained, she apparently indicated, when invited by the learned Federal Magistrate to make oral submissions in support of her application, ‘that because of her lack of understanding of the English language and how the legal system operated, she was unsure of what was expected of her in respect of submissions, and, more generally, what she was expected to present to the Court’ (see [2006] FMCA 553 at [9]).

16                  Counsel then appearing for the Minister submitted that the application for review did not plead any grounds impinging on the Tribunal decision.  It was submitted that the appellant was attempting to take issue with the factual findings of the Tribunal.  These submissions were undoubtedly correct and were accepted by the learned Federal Magistrate. 

17                  The learned Federal Magistrate made an independent assessment of the material in the light of Yo Han Chung v University of Sydney [2002] FCA 186.  He observed that a review of the Tribunal's decision indicated that all the material considered by the Tribunal was provided to it orally during the hearing.  He said at [13] that the only other material it referred to was independent country information which was identified, the key elements of which were reproduced in the decision record. 

18                  His Honour found that there was no evidence of any breach of s 424A of the Act.  The learned Federal Magistrate concluded at [14]:

‘… The applicant has not, in her original application or any submissions made to the Court, been able to identify any area of the Tribunal decision that contains an error that could be considered a jurisdictional one.  The applicant only takes issue with the factual findings of the Tribunal.’

19                  The appellant filed a notice of appeal from the whole of the judgment of the learned Federal Magistrate in this Court on 11 May 2006.  That notice of appeal does not identify any error which might justify the grant of constitutional writ relief in the decision of the Tribunal nor does it suggest any error in the reasoning of the learned Federal Magistrate.  Under the heading ‘Grounds’ the notice of appeal states:

‘I fears persecution in China as a result of

(a) my activity of Human Rights in China and

(b) I am a Falun Gong practitioner

(c) claims relating to applicant's parents and Falun Gong.’

20                  In the section of the notice of appeal where provision is made for an appellant to identify the orders that are sought the appellant indicated that she would ‘provide submission in support of my application for review of the decision of the Department’ of 10 August 2005, that is to say, the decision of the Minister's delegate.  That decision was not before the Federal Magistrates Court nor is it properly before this Court in relation to the relief which this Court could order. 

21                  The appellant has chosen not to express any of her submissions before this Court in English, notwithstanding an invitation that if she was minded to do so she could.  It is clear from the indications given by her when asked questions by the Court in English that she well understands the English language.  She has chosen, as is her right, to present her submissions in the Mandarin language with the assistance of an interpreter. 

22                  The appellant acknowledged that she was aware that this Court could not conduct a merits review in respect of the decision of the Tribunal.  She acknowledged that were her appeal to succeed it would be necessary for her to identify error on the part of the Tribunal which would amount in law to jurisdictional error.

23                  When asked to identify what, if any, error on the part of the Tribunal she wished to advance in support of her case the appellant said words to the effect, ‘I do not know any error committed by the RRT because I don't know the law of this country.  I don't have a legal representative’.  Later she said, ‘I don't understand the law of this country.  My English is not good.  I'm really scared to go back’.  It was suggested to the appellant that the fact that she may be really scared to go back was not a matter that the Court could have regard to in its consideration of the Tribunal's decision.  The appellant indicated that she had nothing further to say in support of her appeal.

24                  It is plain from what has been indicated above that this appeal is without merit and, if I might say so, is one that should never have been brought, requiring the taxpayers of Australia to meet the costs associated with an appeal which is obviously without any merit whatsoever.  In my opinion the learned Federal Magistrate properly addressed the case before him and correctly decided the appellant's application filed 4 November 2005.  In the circumstances the appeal should be dismissed with costs. 

Associate:

Dated:              20 July 2006

The appellant appeared in person.