FEDERAL COURT OF AUSTRALIA

SZIBO v Minister for Immigration & Multicultural Affairs 2007] FCA 234

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

NSD 2082 OF 2006

EDMONDS J

19 FEBRUARY 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The title of the first respondent be amended to ‘Minister for Immigration and Citizenship’.

2.                  The appeal be dismissed.

3.                  The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

1                     This is an appeal against a judgment of the Federal Magistrates Court (Federal Magistrate Barnes) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) affirming a decision of the delegate of the first respondent (‘the Minister’) to refuse to grant a protection visa to the appellant. 

2                     By way of background, the appellant is a citizen of the Peoples Republic of China who arrived in Australia on 29 March 2005.  On 28 April 2005, the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  The appellant claims to have a well-founded fear of persecution because of his political opinion, in particular, his membership of an activist group called China Rainbow Push Coalition of Mainland in the Peoples Republic of China.

3                     The appellant asserts that his actions have put him at risk of being tortured and imprisoned.  The appellant claims that he received a police brief about the activist group and its illegal classification, which resulted in him feeling as though he was in danger.  The appellant asserts that while at work he was arrested by police and he was placed in a detention centre.  He provided photographs which he claimed show him being arrested by the Chinese authorities.  He claimed that he secured his release after the payment of ‘high ransoms’ and subsequently fled to Australia.  The appellant further claims that he has joined the Falun Gong movement while in Australia.

4                     The delegate of the Minister refused the application for a protection visa on 5 August 2005.  On 6 September 2005, the appellant applied to the Tribunal for a review of that decision.  Accompanying his review application, the appellant provided the Tribunal with certificates of release and photographs of Falun Gong practice.  The appellant was invited to attend a hearing.  The appellant attended the hearing and was assisted by a Mandarin interpreter.  The Tribunal did not believe the appellant’s claims.  The Tribunal did not accept that the organisation China Rainbow Push Coalition of Mainland exists as a political or quasi-political group.

5                     The Tribunal found the appellant’s evidence of this organisation’s nature, purpose, membership and activities to be devoid of appropriate and pertinent details.  In the alternative, the Tribunal found that even if this organisation exists, it was not plausible that it would be of interest to the Chinese authorities given the appellant’s evidence that it consisted only of a small group of middle class people meeting in parks and pubs to engage in vague political discussion.

6                     The Tribunal did not place weight on the documents purporting to be the official records of the appellant’s arrest and detention.  The Tribunal noted that according to this documentation the appellant had been arrested on the serious charge of providing state secrets to foreign organisations but was released five days later due to insufficient evidence.  The Tribunal found it implausible that a person arrested on such a serious charge would be released after five days through bribery and or insufficiency of evidence.

7                     The Tribunal did not place weight on the photographs purportedly depicting the arrest of the appellant and found they were taken of a contrived event.  The Tribunal found that the ability of the appellant to depart China legally, shortly after his claimed detention, signified that he was not of any adverse interest to the Chinese authorities.  Finally, the Tribunal found that the appellant’s involvement in Falun Gong was peripheral and as such did not give rise to a well-founded fear of persecution in China.  Further, the Tribunal did not accept that the appellant had a commitment to Falun Gong such that he would pursue involvement in Falun Gong on his return to China.

8                     On 9 January 2006 the appellant filed an application in the Federal Magistrates Court for judicial review of the decision of the Tribunal in which the appellant asserted the Tribunal fell into jurisdictional error in that it failed to comply with its obligations pursuant to the Migration Act 1958 (Cth) (‘the Act’) and denied the appellant procedural fairness.  At [13] of her reasons, her Honour said:

‘There are five particulars to this ground which I take in fact to be two grounds, a failure to comply with procedures (although particular procedures are not identified) and a claim of denial of procedural fairness.  I have considered each of those grounds in relation to each of the particulars.’

9                     The particulars relied on were:

1.                  The findings of the Tribunal with regards to the existence of the activist group and the contradictions in the findings of the Tribunal regarding the existence of the activist group and the arrest of the appellant. 

2.                  The lack of knowledge of the systems in the Peoples Republic of China demonstrated by the Tribunal and its findings about the arrest and release of the appellant. 

3.                  The failure to accept the photographs of the arrest of the appellant provided by the appellant. 

4.                  The Tribunal’s understanding of bribery in the Peoples Republic of China could have been improved if they could refer to terms in the Chinese language. 

5.                  The findings of the Tribunal in regard to the appellant’s Falun Gong involvement.

10                  The Federal Magistrate, in considering the Tribunal’s decision in the light of the claims made by the appellant, found that insofar as the appellant’s first, second and fifth particulars took issue with the factual findings of the Tribunal, the appellant was seeking impermissible merits review.  In relation to the first particular, the Federal Magistrate was of the view that the findings that the group did not exist were open to the Tribunal on the material before it.  The consideration whether, if the group existed, the appellant had a well-founded fear of persecution, did not establish a lack of procedural fairness or a failure to comply with obligations under the Act.

11                  The claim by the appellant in the third particular that the photographs provided by him were genuine and should have been given weight, was found not to establish jurisdictional error.  The findings in relation to the photographs were open to the Tribunal.  The giving of subjective weight is not, as contended, a reflection of failure to comply with the Act for such an evaluation is not information for the purposes of s 424A of the Act.

12                  The fourth particular was similarly determined not to disclose jurisdictional error.  The Tribunal was not obliged to refer to terms in the Chinese language and, in any case, the account of the appellant in this particular is at odds with the evidence presented by the appellant at hearing about his departure from the Peoples Republic of China.  Ultimately, her Honour was satisfied that the Tribunal’s decision did not disclose any jurisdictional error and dismissed the application for judicial review. 

13                  Turning to the appeal to this Court, the notice of appeal reiterates the grounds of review advanced in the Federal Magistrates Court, save that it does not include any particulars.  No written submissions have been provided by the appellant.  No oral submissions were made by the appellant on the hearing, save that the appellant requested that the Court deal with his case fairly.  For the reasons given by her Honour below, addressing each of the particulars advanced in the Federal Magistrates Court, none of those contentions establishes any jurisdictional error affecting the Tribunal’s decision.

14                  Counsel for the first respondent correctly referred me to the recent decision of the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 where the High Court held that there had been a denial of procedural fairness because the Tribunal said nothing to inform an applicant that particular aspects of his claims, which had not been challenged in the primary decision by the Minister’s delegate, were critical issues affecting the determination of the review by the Tribunal.

15                  Having reviewed the Tribunal’s reasons for decision, I agree with the observation of counsel for the first respondent that the appellant was given the opportunity to address the issues upon which the Tribunal’s decision was based because those issues were identified by the Tribunal during the hearing.  As such I agree that there was no error in the procedures adopted by the Tribunal and the reasoning in SZBEL does not apply.  The appeal must be dismissed.

16                  The orders of the Court will be:

1.                  The title of the first respondent be amended to Minister for Immigration and Citizenship.

2.                  The appeal is dismissed.

3.                  The appellant pay the first respondent’s costs.

Associate:

Dated:         1 March 2007