FEDERAL COURT OF AUSTRALIA

SZIWL v Minister for Immigration and Citizenship [2007] FCA 1260

SZIWL v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE EVIEW TRIBUNAL

NSD 1985 OF 2006

SIOPIS J

20 AUGUST 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The title of the first respondent is varied to “Minister for Immigration and Citizenship”.

2.                  The appeal is dismissed.

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 from the judgment of Federal Magistrate Scarlett, delivered on 22 September 2006,which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal).  The Tribunal decision was dated 29 March 2006 and affirmed the decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

2                     The appellant is a citizen of the People’s Republic of China (China).  He arrived in Australia on 31 August 2005 and applied for a protection visa on 14 October 2005.  The application was refused on 29 December 2005 and the appellant sought a review before the Tribunal on 27 January 2006.

3                     Before the Tribunal the appellant claimed to have a well‑founded fear of persecution, owing to his association with Falun Gong practitioners.  The appellant claimed that in the course of his employment as a primary school teacher in the previous three years, he had allowed one of his pupils and the pupil’s father, who was a Falun Gong practitioner and activist, to move into his home.  In his statutory declaration the appellant said that he was motivated to help because the pupil was not progressing well at school as he was poor and had to help his father in his work as a locksmith.  He stated that the pupil’s mother remained in jail because she would not renounce Falun Gong and that the father showed him scars from violence inflicted by Chinese authorities for practising Falun Gong.  The appellant said that after the father told him about his persecution he decided to cultivate awareness about the Universal Declaration of Human Rights and the father had, therefore, given him addresses of other Falun Gong practitioners.

4                     The appellant claimed that he initiated the dissemination of one hundred copies of the Universal Declaration of Human Rights to persecuted Falun Gong practitioners and their children from April 2005, as well as approximately one hundred greeting cards to children in June 2005 for International Children’s Day.  He stated in his declaration, and before the Tribunal, that he had sent an anonymous “special letter” to central and local government offices, from June to July 2005.  He claimed that six police officers searched his home on 19 July 2005 and that although they did not find any evidence, he was removed to the “Public Security Bureau” ‑ where he was detained until 30 July 2005 for being “against the government”.

5                     He alleged that he was interrogated and abused during his detention.  He claimed he was released on bail after fainting but was “denounced as a ‘criminal’ who has taken advantage of the position as a teacher to ‘poison’ innocent children” and would, therefore, face persecution should he return to China.  He claimed before the Tribunal that the parent of one of his students had helped him to obtain a passport in a false name, in August 2005.

6                     The Tribunal did not consider the appellant’s claims to be plausible.  The Tribunal observed:

In any case, I consider it highly implausible that [the father] would have been able to remember even twenty such addresses accurately and that, even if he could, he would have given that information to the [appellant].  My reason for finding the latter implausible is the fact that it would have led to a written record being made of those addresses, something [the father] had apparently found it safest to avoid doing to date.  Further, it would have enabled the [appellant] to send material to individuals who had already been targeted by the authorities, material which they could obtain themselves from the internet if they had wanted it, but which in any case could only renew adverse interest in them by the PSB and thus would have been highly unwelcome.  Relevant to this point is the evidence from the U.S. State Department that domestic mail is monitored by the PRC authorities, a fact with which I am satisfied Falungong practitioners would be familiar and with which [the father] would have been familiar.  In my view, if [the father] was a Falungong practitioner, he would not have given the claimed information to the [appellant].

7                     The Tribunal also found that the appellant’s evidence was vague in the extreme.  His evidence that he wrote and sent the letters anonymously, was inconsistent with his evidence that the Falun Gong practitioners to whom he had written, had written back to him with addresses of other Falun Gong practitioners.

8                     The Tribunal did not, therefore, accept that the appellant sent incriminating materials, nor that the appellant’s house was consequently raided.

9                     The Tribunal did not consider that the reasons the appellant gave for leaving China were genuine, and did not accept the appellant had accommodated in his home a Falun Gong practitioner, nor that he himself had actively acted as an advocate in support of human rights.  While the Tribunal accepted that the appellant travelled to Australia using a passport in another person’s name, it found that he had done so because the passport in question contained a tourist visa for entry to Australia, rather than because he was fearful of further detention due to alleged political activity.

10                  On 23 May 2006, the appellant filed an application for judicial review in the Federal Magistrates Court.  At the hearing, the appellant relied upon grounds which may be summarised as follows:

(a)        The Tribunal did not assess the appellant’s claims fairly or properly.  The Tribunal was unfair in its questioning of the appellant at hearing and was wrong to accept the US State Department report as accurate, and was wrong to find that his evidence was vague.

(b)       The Tribunal failed to comply with s 424A(1) of the Migration Act 1958 (Cth) (the Act) by not giving him notice of the Tribunal’s intended findings.

(c)        The Tribunal failed to comply with s 425(1) of the Act as the appellant was not given a “genuine opportunity” to put forward his evidence and make submissions.

11                  Before the Federal Magistrate, the appellant sought leave to add a new ground, namely, that the Tribunal had breached s 420 of the Act, by conducting the hearing in an unfair manner.  He alleged that he had not been afforded the opportunity to give all the evidence he wanted to give and that the Tribunal member was not acting objectively.

12                  The Federal Magistrate dealt with each ground.  In relation to the first ground, his Honour said that insofar as the appellant alleged bias, he said he was satisfied that there was “no evidence of any bias, whether apprehended or actual”.  Rather, said the Federal Magistrate, it was “clear from the Tribunal’s findings and reasons that [it] was not satisfied as to the [appellant’s] credibility”; and that was a factual determination for the Tribunal to make.  Otherwise, the appellant’s complaint was an impermissible challenge to the merits of the review.

13                  The Federal Magistrate found that the second ground failed as there had not been any breach of s 424A(1).  Country information (regarding monitoring of mail) was exempt under s 424A(3)(a) of the Act.  The Federal Magistrate also said that the Tribunal’s determinations or thought processes were not “information” for the purposes of s 424A of the Act.

14                  In relation to the third ground, the Federal Magistrate referred to NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 and found there was no evidence that the hearing had been truncated, nor that the appellant was prevented from giving evidence.  The appellant had not provided any transcript.  However, his Honour noted that at the conclusion of the hearing the Tribunal had given the appellant an opportunity to make further submissions in written form.  The appellant had not taken advantage of that opportunity.  It was noted that the appellant appeared to have been under the misconception that s 425 of the Act gives a right of reply to the Tribunal’s decision.  His Honour concluded that there was no breach of s 425.

15                  The Federal Magistrate considered that if the new ground in the amended application was taken to be a reference to bias, then it failed for the reasons given in relation to the first ground.  However, if it was to be taken to be a reference to the common law on procedural fairness, it must fail because the common law is excluded by the operation of s 422B of the Act.

16                  The Federal Magistrate found no jurisdictional error in the Tribunal’s decision and dismissed the application.

17                  The appellant filed a notice of appeal in this Court on 11 October 2006 in very general terms alleging, in effect, that the Federal Magistrate “erred in law”, and was “wrong in finding that the Refugee Review Tribunal acted properly in its findings”.

18                  The applicant filed submissions which confined his complaint to an allegation that, in effect, the Federal Magistrate erred in holding that there had been no failure by the Tribunal to comply with s 424A of the Act.

19                  The appellant contended that the Tribunal had failed to invite him in writing to comment upon:  “my claim regarding Universal Declaration of Human Rights was inconsistent with the one that could be obtained from the internet”; and “my claims regarding the letter in the name of a teacher from a primary school was inconsistent with the one from the US State Department that domestic mail is monitored by the PRC authorities”.

20                  I understood the appellant’s submission to complain that he had not been given an opportunity to comment in writing upon what he regarded as findings of inconsistencies in his evidence, in the two respects identified; which he said was “information” to which s 424A(1) applied because it was the reason, or part of the reason, for the Tribunal affirming the decision under review.

21                  In my view, the appellant's submission is not to be accepted.  The reason why the Tribunal affirmed the decision was that it disbelieved the appellant’s evidence because of the implausibility of that evidence, rather than as the appellant characterised it, the “inconsistencies” in his evidence.  But whether the appellant’s evidence was disbelieved due to its “implausibility” or “inconsistency” is naught to the point, because it is accepted that a finding that evidence is disbelieved on the grounds of implausibility or inconsistency is part of the subjective appraisal made by the Tribunal which does not comprise “information” for the purpose of s 424A(1) of the Act (VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471, SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 616, at [18]).  Further, insofar as the appellant's complaint was that he was not provided with country information, s 424A(3)(a) excludes country information, from the “information” which is to be provided under s 424A(1) of the Act.

22                  In addition, insofar as the appellant may have implicitly contended by the general nature of his grounds of appeal, that the Federal Magistrate erred in his conclusions on the other grounds which were raised before him, but not raised before me, I would dismiss the appeal on the basis that the Federal Magistrate’s conclusions were correct for the reasons he gave.

23                  It follows that the appeal is dismissed with costs.

Associate:

Dated:         20 August 2007