FEDERAL COURT OF AUSTRALIA

SZINB v Minister for Immigration and Multicultural Affairs and Anor [2006] FCA 1627

Migration Act 1958 (Cth), s 424A

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) ALR 162, followed

Servos v Repatriation Commission (1995) 129 ALR 509

SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749, referred to

SZAJB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 782, referred to

SZINB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1533 OF 2006

COWDROY J

30 NOVEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

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

3.                  The appellant pay the costs of the first respondent in the sum of $1700.

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

REASONS FOR JUDGMENT

1                     The appellant who was born in Fujian province in the People’s Republic of China (‘PRC’) and who has been living in Hong Kong, appeals from the decision of Emmett FM delivered on 27 July 2006. Her Honour dismissed an application for judicial review of the decision of the Refugee Review Tribunal (‘the Tribunal’) which confirmed a decision of the delegate of the Minister for Immigration and Multicultural Affairs (‘the Minister’) that the appellant was not entitled to a Protection visa.

FACTS

2                     The appellant arrived in Australia on 14 August 2005. On 21 September 2005 he made an application for a Protection visa. In the statement attached to the application, he claimed that his friend was a member of the ‘Shouters’, a group which delivers bibles from Hong Kong to mainland China. The appellant claimed that he was assisting a friend to deliver bibles to Fu Qing when his colleague and himself were apprehended and detained. The appellant was released and returned to Hong Kong, but shortly thereafter he considered that he was being ‘supervised’ by some people and that his freedom was lost when his car was broken into and later his apartment was robbed. For these reasons, being concerned about his safety, he came to Australia for protection and applied for a Protection visa.

3                     By letter dated 22 October 2005 the Minister wrote to the appellant informing him that his application had been refused.

APPLICATION TO TRIBUNAL

4                     By Application for Review dated 21 November 2005, the appellant applied to the Tribunal for a review of the Minister’s decision. On 23 November 2005 the Tribunal acknowledged receipt of the Application for review and by letter dated 8 December 2005 the Tribunal wrote to the appellant advising him that a hearing had been fixed for 6 January 2006. A Response to Hearing Invitation form was enclosed.

5                     The hearing took place before the Tribunal and was attended by the appellant and an interpreter. The Tribunal’s decision was delivered on 21 February 2006. The Tribunal decided that it was not satisfied that the appellant was a person to whom Australia owed protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (‘the Convention’).

6                     The Tribunal found that the appellant was a citizen of the Hong Kong Special Administrative Region and that both the appellant and the majority of his close family members lived in Hong Kong and have done so for many years.

7                     The Tribunal observed that the appellant had never encountered any difficulties in travelling from Hong Kong to visit the only remaining family members in the appellant’s birthplace in Fujian province, being his grandmother and uncle. On occasions when he has visited those relatives, he has carried hand luggage containing gifts and from time to time, bibles into the PRC. The Tribunal accepted that the appellant, on a visit to the PRC in 2005, stayed with a friend and that the friend was a member of the sect called the Shouters. The Tribunal accepted that the PRC authorities do not approve of the sect because of their habit of loud public proselytising. The Tribunal found that on one occasion the authorities inspected the appellant’s papers and detained him but upon realising that he was a visitor from Hong Kong released him immediately. The Tribunal found that the appellant was detained simply because he was staying at the house of a Shouter and that the appellant was of no further interest to the authorities.

8                     The appellant claimed that his father was assisting in the construction of a church in China. He claimed that upon returning to Hong Kong his car was broken into as well as his apartment. A file of papers was taken from the apartment which dealt with the timetable for the construction of the church.

9                     The Tribunal found that the discussion concerning the church was of no consequence and that the claim concerning the theft of papers was merely an attempt to involve the PRC authorities in his current application. The Tribunal noted that the appellant claimed that when the papers were stolen a note was left on the Public Security Bureau (‘PSB’) letterhead, asking him to come to their office. The Tribunal observed:

‘Since the hearing, I have investigated the status of the PSB in Hong Kong. I am satisfied that the PSB is not a law-enforcement or security unit operating within Hong Kong, or having power over Hong Kong citizens.’

10                   The Tribunal rejected the appellant’s claim that he was monitored or otherwise subject to adverse attention of the PSB in Hong Kong. It found that the appellant made no claims nor did the evidence suggest that he was in any way worried by the local authorities in Hong Kong. The Tribunal member observed:

‘He has made no claims, nor does the evidence suggest, that there is any curtailment of his freedom of religion in Hong Kong. He has fairly ill-defined fears about the Chinese (PRC) authorities – that they will charge him in regard to smuggling bibles into China. I am satisfied that the Chinese authorities have no power to harm the applicant in Hong Kong. Although the Chinese authorities can request the assistance of the Hong Kong police in matters relating to cross-border crime, there is no evidence at all that the Chinese authorities have any adverse interest in the applicant.’

11                  The Tribunal found that the appellant had made his life in Hong Kong rather than on the mainland of the PRC and that he was entitled to enter and permanently reside in Hong Kong. He had suffered no harm for a Convention reason in Hong Kong in the past and the chance was remote that such harm would come to him in the reasonably foreseeable future. The Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason and accordingly found that he was not a refugee.

APPLICATION TO FEDERAL MAGISTRATES COURT

12                  By application filed on 17 March 2006, the appellant sought judicial review in the Federal Magistrates Court of Australia. Subsequently by amended application dated 27 June 2006 the appellant identified the grounds of review. The grounds claim that the Tribunal failed to carry out its statutory duty and in this regard identified a breach of s 424A of the Migration Act 1958 (Cth) (‘the Act’); that the Tribunal was biased when considering his application and that the Tribunal did not provide him an adequate opportunity to respond to the information.

13                  Emmett FM heard the application and delivered her decision on 27 July 2006.

14                  Her Honour noted that the Tribunal found that there had been a relationship between the Hong Kong police force and the PSB and that if a Hong Kong citizen wished to complain that the relationship between those organisations had been breached, a Hong Kong citizen could complain to the Independent Police Complaints Council which, the Tribunal found, was an effective body. However the information relied upon by the Tribunal was information which fell within the exception to s 424A(1) contained in s 424A(3)(a) of the Act. Accordingly, there was no breach of s 424A.

15                  As to the allegation of bias, Emmet FM noted that there was no evidence that the Tribunal conducted its review other than in a fair and reasonable manner and found that there was no basis for the allegation of bias.

16                  With regard to the ground that the Tribunal did not provide an adequate opportunity to the appellant to respond to the substance of the information, Her Honour noted that the appellant gave evidence before the Tribunal and expanded on his written claims. She was unable to find any basis for the assertion that he was not given adequate opportunity to respond to the concerns raised by the Tribunal. Her Honour also noted that the appellant did not tender any evidence at the hearing before her even though on 13 April 2006 the Federal Magistrates Court directed the appellant to file any further evidence by 7 July 2006.

APPEAL TO THIS COURT

17                  By Notice of Appeal filed on 14 August 2006 the appellant raises three grounds of appeal to this Court. These grounds are that the Tribunal failed to carry out its statutory duty in that it was required to provide particulars of information that was a reason or part of the reason for affirming the decision according to s 424A of the Act; that the Tribunal failed to consider the application according to s 91R of the Act; and that the Federal Magistrates Court failed to find errors of the Tribunal.

18                  At the hearing before me, the appellant claimed that the Tribunal was prejudiced, failed to give him independent country information and failed to carry out its legal obligation. He claimed that the Tribunal was required to give him reasons for its decision before giving its decision to enable him to respond and the Tribunal failed to provide such reasons. He referred to SAAP v Minister for Immigration and Multicultural Affairs [2005] HCA 24.

FINDINGS

Bias

19                  No evidence has been provided to support the claim of prejudice and the appellant merely said that the Tribunal had made a judgment ‘out of its own mind’ rather than upon the evidence. The principles relating to allegations of bias were considered in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749. In that decision the Full Court made it plain that allegations of bias are serious and should be clearly alleged and proved (see at [43]). The allegations in the present case are unsupported by any evidence and accordingly this ground must be dismissed.

 Failure of the Tribunal to provide information pursuant to s 424A of the Act

20                  The information which it is claimed should have been provided is not specified in the Notice of Appeal. Insofar as it relates to the relationship between the Hong Kong police and the PSB, such information is regarded as country information; that is, it is information upon which the Tribunal may take cognisance and pursuant to s 424A(3) there is no obligation upon it to furnish such information to the appellant. Had the Tribunal relied on material other than country information which had not been furnished to the appellant, and had not been provided by the appellant to the Tribunal, the Tribunal would have been obliged to provide such information to the appellant: see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) ALR 162 per Gleeson CJ at [5]. However, in this instance there is simply no such material relied upon by the Tribunal.

21                  At the hearing before me the appellant sought to rely upon several documents purportedly issued by the PSB. These documents comprised of an arrest warrant, a ‘wanted’ notice, purportedly arising from his importation of bibles into the PRC, and a certificate of baptism. The appellant did not produce the originals of such documents and said that they were at home. He also referred the Court to an affidavit but he did not rely upon it.

22                  The three documents were not placed before the Tribunal and it is unclear whether they were placed before Emmett FM as Her Honour’s judgment does not refer to them, and the transcript of the hearing before Her Honour has not been tendered.

23                  Spender J in Servos v Repatriation Commission (1995) 129 ALR 509 has reviewed the authorities in relation to the tender of fresh evidence. His Honour concluded that where the Court’s jurisdiction arises under an appeal pursuant s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), there is no power of the Court to receive fresh evidence which was not before the Tribunal, in order to demonstrate an error by the Tribunal. By analogy, the Court applies the same rule to proceedings in this Court arising under Part 8 of the Act.

24                  Although the function of this Court is to review purported errors of law of the Federal Magistrate rather than those of the Tribunal: see SZAJB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 782 at [4], the Court nevertheless allowed the tender of the documents in order to understand the argument of the appellant.

25                  The appellant was asked why he had not produced the three documents to the Tribunal. The appellant claimed that he was not given enough time to do so. He also claimed that he was too scared to produce them. In fact, the Tribunal questioned him extensively in relation to the very issues which are the subject of the documents, namely the appellant’s alleged involvement in the activity of importing bibles into the PRC.

26                  The appellant did not argue that the Tribunal erred in finding that he was detained in the PRC for a short period only because he happened to be at his friend’s home when the PSB called. Nor did he dispute the Tribunal’s finding that the PSB had not questioned him in relation to the smuggling or importing of bibles to the PRC and that when they realised he was a visitor from Hong Kong they released him. Accordingly, the Tribunal correctly concluded that the appellant was not a person of interest to the PSB.

27                  In view of the appellant’s evidence that he received the documents about one month after his arrival in Australia, it is inexplicable that the appellant would not have referred the Tribunal to them. They were important to his claim and he was extensively questioned about his claim of persecution, yet he did not provide the documents or make any reference to them. In these circumstances I accept the submissions of the respondent that the documents are of recent invention and are not genuine.

Failure to consider application under s 91R of the Act

28                  As stated above, function of this Court is to determine whether there is any error on the part of the Federal Magistrate rather than any deficiency on the part of the Tribunal. Nevertheless, the Court notes that the appellant has provided no further particulars of this ground of appeal and no error is apparent as claimed.

29                  Accordingly the Court dismisses this ground of appeal.

Failure to find error of the Tribunal

30                  No error is identified and I am unable to find any deficiency in the reasoning of the Tribunal or in the reasoning of Emmett FM. It follows that this appeal must be dismissed.

31                  The Court notes that consistent with the decision of the High Court in SAAP the Refugee Review Tribunal should be joined as a second respondent.

Costs

32                  The first respondent has sought an order that the appellant pay its costs in the sum of $1700. Since this is within a realistic range for costs the Court will make such order.

Associate:

Dated:         30 November 2006