FEDERAL COURT OF AUSTRALIA

SZLSH v Minister for Immigration and Citizenship [2008] FCA 1278

Migration Act 1958 (Cth)

R v Watson; Ex Parte Armstrong (1976) 136 CLR 248

Vakauta v Kelly (1989) 167 CLR 568

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425; [2001] HCA 28

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26

SZICU v Minister for Immigration and Citizenship (2008) 100 ALD [2008] FCAFC 1

WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330

SZLSH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1062 of 2008

REEVES J

29 AUGUST 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     This is an appeal against a judgment of Federal Magistrate Lloyd-Jones delivered on 20 June 2008, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’). The Tribunal’s decision was handed down on 15 November 2008 and affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

BACKGROUND – SUMMARY OF FACTS

2                     The appellant is a citizen of the People’s Republic of China (‘China’) who arrived in Australia on a business visa on 3 May 2007. He lodged his application for a protection visa three weeks later, on 25 May 2007. A delegate of the first respondent refused that application on 5 September 2007.  The appellant then applied to the Tribunal for a review of that decision on 26 October 2007.

3                     The appellant lodged a statement with his protection visa application which set out his claims to fear persecution in China on the basis of his Falun Gong practice. The statement reads as follows:

‘I am from Hailin City Hailongjiang.  Because of my Falun Gong practice, I have made up my min[d] to lodge my application for a protection visa.  I became a Falun Gong member in 1998 when I was working for Mu Dan Jiang No.2 Plastic Factory.  I learnt it from a Senior Falun Gong member whom I met at a park when I was having morning exercises there.  He told me that practi[s]ing Falun Gong was better than just having exercises at the park.  I learnt it from him with the attitude of trying to see.  I liked it more and more.  At the end of 1999, the Chinese government started to ban Falun Gong, and I was sacked from factory in December 1999 because the cadre in the factory worried that I would badly influence the image of the factory in case I was arrested by the police because of my practice of Falun Gong.  I was also required to confess at the police several times and was once forced to sign on a declaration that I would not practi[s]e Falun Gong any more.  I could not find another job because of my bad record.  I had to do business by myself for a living from then on.  Because of my business nature, I met with a lot of people, and I made good use of the chances to promote Falun [G]ong to people I met.  My role with Falun Gong became more and more important, and police was targeting me before I came to Australia.  I was arrested by police due to my practice of Falun Gong in early 2007, and I paid large amount of bribery money for the release from the police.  I then tried to get my visa to come to Australia for protection.  I will be persecuted on my return to China.  I sincerely hope that Australian government can provide me with protection.’

4                     The appellant appeared at a hearing before the Tribunal on 24 October 2007. The Tribunal’s Decision Record confirms that at that hearing he elaborated on the above claims, saying that his colleagues reported him to his employer for practising Falun Gong and that after he was sacked and started his own business he was required to pay three times the ordinary rate of tax; he later categorised this as “only a mild problem related to his business”. He claimed he continued to practise “the movements for treating heart and mind” - but not the other exercises - on fine days in a public park until he left China for Russia. He commenced practising again when he returned and claimed that he was eventually arrested and detained by “formal” police at the local station in Hai Lin City for three days and ordered not to practice Falun Gong.  Thereafter he claimed he was subjected to random police visits at his home throughout 2004 and 2005.  He also claimed that he occasionally practised Falun Gong after he came to Australia and that his commitment to Falun Gong justified him leaving his family because “they could not come back to their normal lives and work”.

5                     The Tribunal’s Decision Record also records that at hearing the appellant was unable to name the five Falun Gong exercises, instead stating that “he is not interested in the exercises and does not know much about them”.  When asked whether there were any other matters he wished to raise, the appellant’s response was to the effect that he had no choice but to leave China because his country had treated him unfairly. Finally, when the country information on China’s entry and exit laws was put to him, the appellant said that getting a visa is harder than getting a passport but you can get what you want from government officers in China, provided that you pay enough money.  

THE TRIBUNAL’S DECISION

6                     The Findings and Reasons section of the Tribunal’s Decision Record states that the Tribunal was not satisfied that the appellant was a witness of truth, and that his “critical claims lack credibility and cannot be accepted”. The Tribunal cited several factors in making this finding, including:

a)                  The appellant’s claim to have practised Falun Gong with others in public parks in China after it was banned appeared implausible;

b)                 The appellant nominated erroneous dates for major events, for example he thought Falun Gong was banned late in August of 1999 whereas it was banned on 22 July 1999 (that is, before he claims to have joined a group practising in the park); he gave various answers about the year in which he had been arrested; and the year in which he was studying in Russia; and he claimed his second passport had been issued a year before it was in fact issued;

c)                  The appellant had a limited knowledge of Falun Gong exercises and principles although his evidence was that he had performed at least some exercises with others in China and Australia and that he had promoted Falun Gong;

d)                 The appellant was able to renew his passport in his own name in China despite country information suggesting that this would be difficult for a person of adverse interest to the authorities there; and

e)                  The appellant had delayed leaving China despite his alleged fear of harm there.

There is a similar summary of the Tribunal’s decision at [11] of the Federal Magistrate’s decision (see [2008] FMCA 818). 

7                     For these reasons the Tribunal found that the appellant “was prepared to fabricate his evidence about his involvement in and practice of Falun Gong and his adverse dealings with the leaders in the manufacturing factory, his work colleagues at the factory and the police to give himself the profile of a refugee. The Tribunal [found] that the [appellant] is not and never was a Falun Gong practitioner…and is unlikely to be so perceived if he returns to China”. Consequently, the Tribunal concluded that the appellant did not hold a well-founded fear of persecution for a Convention-related reason and it therefore affirmed the delegate’s decision.

THE FEDERAL MAGISTRATE’S DECISION

8                     The appellant filed an application for judicial review in the Federal Magistrates Court on 3 December 2007 and an amended application on 2 April 2008. The appellant did not avail himself of an offer of legal advice from a panel member. The claims raised in the original application may be summarised as follows:

1.                  The Tribunal decision was affected by bias.

2.                  The Tribunal failed to notify the appellant in writing of the reasons or part of the reason for making the decision and therefore did not comply with its obligations under s 424A(1) of the Migration Act 1958 (Cth) (‘the Act’).

3.                  The Tribunal failed to properly consider the chance of persecution if the appellant was forced to return to China.

9                     In the amended application the appellant amended the third ground, repeated the second ground and abandoned the first ground.  In summary the two remaining grounds were:

1.                  The Tribunal failed to consider that the appellant had been practising Falun Gong in Australia and that this may result in further persecution should he return to China.

2.                  The Tribunal failed to notify the appellant in writing of the reasons for its decision, and therefore failed to allow him to comment on them in breach of s 424A of the Act.

10                  At the hearing on 21 May 2008, the appellant made oral submissions raising an allegation of bias (as per the abandoned first ground of his original application) so Federal Magistrate Lloyd-Jones proceeded to consider all of the grounds raised in the two applications.

11                  In relation to the (abandoned and reinstated) ground of review that the “Tribunal’s decision was affected by bias” the Federal Magistrate observed that this allegation was not particularised and no evidence had been presented to support it, leaving the Tribunal’s Decision Record as the only record of what had occurred.  Nonetheless, his Honour examined the Tribunal’s Decision Record carefully and canvassed the relevant authorities including the High Court’s decisions in R v Watson; Ex Parte Armstrong (1976) 136 CLR 248, Vakauta v Kelly (1989) 167 CLR 568, Johnson v Johnson (2000) 201 CLR 488, Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17, Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 and Re Refugee Review Tribunal: Ex Parte H (2001) 179 ALR 425; [2001] HCA 28.  From these authorities and a number of decisions of the Full Court of this Court, his Honour emphasised, among other things, that where credibility is an issue the Tribunal will necessarily have to test the evidence presented, and often vigorously; that a party alleging actual bias on the part of a decision-maker carries a heavy onus; and that an allegation of bias must be clearly proved.  His Honour ultimately concluded (at [19]) that:

‘When the applicant was invited to address the Court he initially stated that the Tribunal member was biased and that she did not consider his application properly.  There was no further elaboration on this claim and it appears to be nothing more than the applicant expressing dissatisfaction with the decision.  A fair reading of the Tribunal’s decision does not support a claim of bias and this ground should be rejected.’

12                  The second ground of review in both the original and amended forms of the application for review alleged a breach of s 424A of the Migration Act 1958 (Cth) (‘the Act’).  As with the allegation of bias (discussed above), this allegation was not particularised and therefore the “information” in issue was not identified by the appellant.  Nonetheless, in the Federal Magistrate’s decision, his Honour has identified two pieces of information which he thought were the source of this alleged breach of the Act, as follows:

1.                  The information contained in the appellant’s passport about his travels and its date of issue; and

2.                  The independent country information to the effect that persons of interest to the Chinese authorities were unlikely to be able to obtain passports, or to leave the country.

13                  In relation to the passport information, his Honour concluded that the passport did not in itself contain in its terms “a rejection, denial or undermining” of the appellant’s claim for protection, referring to the High Court’s decision in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 and the recent decision of the Full Court of this Court in SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1 (‘SZICU’).

14                  In relation to the independent country information, his Honour found that this information fell within the exception in s 424A(3)(a) of the Act referring to the decision of the Full Court of this Court in WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330 at [44] – [46].  His Honour also observed that in SZICU (at [26]), the Full Court held that the Tribunal’s disbelief of the appellant’s claim in that case to be of adverse interest to the authorities (since he was able to obtain a passport and exit the country, against independent country information to the contrary), was not “information” which must be put to the appellant pursuant to s 424A(1) of the Act.  Ultimately, his Honour found that the appellant had not been able to identify any information which should have been provided to him pursuant to s 424A of the Act. 

15                  The Federal Magistrate found that the appellant’s broad assertion - that the Tribunal had failed to assess the persecution he would face if he returned to China - could not be sustained. His Honour concluded that the Tribunal was not required to assess such persecution in the face of its finding that there was no basis for the appellant’s claim to fear persecution, because it did not believe his claims were credible.  His Honour found these findings were findings of fact that were open on the evidence and particularly the appellant’s own evidence to the Tribunal.  Regarding the appellant’s practice of Falun Gong in Australia, the Federal Magistrate referred to the fact that the appellant had not raised s 91R(3) of the Act in either of his applications and found it unnecessary to consider that section in circumstances where the Tribunal had found that the appellant had never been involved in Falun Gong in either China or Australia.

16                  His Honour accordingly dismissed the application(s) for want of jurisdictional error.

GROUNDS OF THE PRESENT APPEAL

17                  The notice of appeal filed in this Court on 11 July 2008 raises the same three grounds as were raised in the appellant’s original application in the Federal Magistrates Court and dealt with by Federal Magistrate Lloyd-Jones, save for these changes: it is no longer alleged the notification had to be in writing, and a lack of opportunity to comment has been added to the alleged breach of s 424A.  The three grounds of appeal are:

1.                  The Tribunal had bias against me and believed that I fabricated my evidence about my involvement with Falun Gong. The Tribunal mentioned it at the decision letter sent to me.

2.                  The Tribunal failed to consider my application according to S424A of the Migration Act 1958. The Tribunal had not notified me the reason or part of the reasons for affirming the decision. I was not given an opportunity to comment upon the reasons.

3.                  The Tribunal failed to assess the chance of my persecution because of my practice of Falun Gong.

THE CONTENTIONS

18                  At the hearing of the appeal before me on 26 August 2008, the appellant appeared in person, unrepresented, but assisted by an interpreter.  Ms Sirtes appeared for the first respondent. 

19                  The appellant began by seeking an adjournment of the hearing because he claimed that he did not have enough time to prepare for the appeal.  Curiously, he complained that some appellants he knew had six months to prepare and that it was not fair that his appeal had been brought on for hearing so quickly.  He confirmed that he had received the Court’s letter dated 25 July 2008 notifying him of the listing of this matter on 26 August 2008, thus allowing him about one month to prepare.  In the absence of any genuine prejudice being raised by the appellant, I refused his application for an adjournment.  The appellant then stated he had nothing further to say.

20                  Ms Sirtes submitted that the notice of appeal filed by the appellant was in the form of a template often seen in this jurisdiction which did not engage in identification of error on the part of the Federal Magistrate, but instead simply repeated the grounds raised before the Federal Magistrate in the appellant’s application(s) for judicial review of the Tribunal’s decision.  Otherwise, Ms Sirtes was content to rely on the outline of written submissions that had earlier been filed on behalf of the first respondent.

CONSIDERATION

21                  The notice of appeal filed in this Court suffers from a number of obvious deficiencies that are all too common in appeals of this kind.  With some minor changes, it essentially repeats as grounds of appeal, the grounds of judicial review raised before the Federal Magistrate.  More importantly, it does not engage in any genuine attempt to identify any error on the part of the Federal Magistrate, the correction of which is, afterall, the primary purpose of any appeal to this Court from a judgment of the Federal Magistrates Court.  Furthermore, even if I were to assume that the appellant is intending to allege that the Federal Magistrate erred by failing to accept the alleged errors in the Tribunal’s decision, the grounds of appeal do not attempt to provide any particulars of the conduct said to evidence bias on the part of the Tribunal, or of the information that the Tribunal should have provided to the appellant pursuant to s 424A of the Act.  This was also the case before the Federal Magistrate.  Instead, the grounds of appeal make some very broad allegations of bias, a failure to comply with s 424A and a failure to properly assess the chances that the appellant may suffer persecution in China because of his practice of Falun Gong.  Finally, even if all of these deficiencies could be overcome, there has been no attempt by the appellant to identify how any of the alleged errors could amount to jurisdictional error, to allow this Court (or the Federal Magistrates Court before it) to intervene.

22                  Notwithstanding these several deficiencies in the appellant’s notice of appeal, I have examined the Federal Magistrate’s decision in order to identify whether it contained any appellable error.  Having done so, I respectfully agree with his Honour’s conclusions that there is no support for the appellant’s allegation of bias against the Tribunal (see [11] above), nor his allegation that the Tribunal breached s 424A of the Act (see [12] – [14] above), nor his general allegation that the Tribunal had not assessed his fear of persecution – which is, of course, quintessentially a matter for the Tribunal (see [15] above).  It follows that I also agree with his Honour’s conclusion that the appellant has failed to establish any jurisdictional error on the part of the Tribunal, such that the Federal Magistrates Court could have intervened. 

CONCLUSION

23                  For these reasons, this appeal must be dismissed.  I will hear the parties on the question of costs.

Associate:

Dated:         29 August 2008