FEDERAL COURT OF AUSTRALIA

SZGQK v Minister for Immigration and Citizenship [2008] FCA 1658

Migration Act 1958 (Cth) s 91R(3)

SZGQK v Minister for Immigration and Citizenship [2008] FMCA 982 cited

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited

SZJGV v Minister for Immigration and Citizenship 247 ALR 451 cited

SZGQK v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1153 of 2008

TRACEY J

11 NOVEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed with costs fixed in the amount of $2,900.

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 a Federal Magistrate delivered on 2 July 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 18 October 2007: see SZGQK v Minister for Immigration and Citizenship [2008] FMCA 982.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship not to grant a protection visa to the appellant.

BACKGROUND

2                     The appellant is a citizen of the People’s Republic of China.  The appellant entered Australia on 19 December 2004 on a Temporary Business Visa.  On 24 January 2005 the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs, as it was then known.  A delegate of the first respondent refused the application for a protection visa on 23 February 2005.  On 14 March 2005 the appellant applied to the Tribunal for a review of that decision.  On 17 May 2005 the Tribunal affirmed the delegate’s decision.  The appellant appealed to the Federal Magistrates Court.  On 13 February 2006 the Federal Magistrates Court dismissed the application.  The appellant appealed to this Court.  On 11 August 2006 Tamberlin J set aside the Tribunal’s decision and remitted the matter to the Tribunal.  On 24 November 2006 the Tribunal, differently constituted, affirmed the delegate’s decision not to grant the appellant a protection visa.  On 31 May 2007 the Federal Magistrates Court ordered by consent that the Tribunal’s decision be set aside and remitted the matter to the Tribunal.  On 18 October 2007 the Tribunal, differently constituted, affirmed the delegate’s decision not to grant the appellant a protection visa.  It is this decision of the Tribunal that is the subject of the present appeal.

3                     The appellant claimed that he was suspected of being a Taiwanese spy because he worked as a welder for several Taiwanese firms in Fujian.  He stated that he had established close contact with a number of Taiwanese individuals who held senior positions in these firms and remained in contact and received gifts from them.  He claimed that he was dismissed from his job in 1999 because of these suspicions and he was unable to get another job until 2004.  He claimed that he was interrogated by the Public Security Bureau in November 2004.  He stated that his wife and parents were threatened by the local authorities because he was suspected of being a Taiwanese spy and his child has been denied family registration.

4                     The appellant also claimed that a fisherman friend who visited Mazu Island and spoke to some Taiwanese people was sentenced to five years in jail and identified him (the appellant) as being a Taiwanese spy.  He also stated that his hometown is very close to Taiwan and many young people living there sell material to the Taiwanese.  The Chinese authorities are, therefore, more suspicious of him because of the proximity of where he lives to Taiwan.  Finally he claimed that one of his Taiwanese friends had been in the Taiwanese army which made the Chinese authorities even more suspicious of him.

REFUGEE REVIEW TRIBUNAL

5                     The Tribunal found that the appellant was not a truthful or credible witness.  His claims were very general and lacked specific details.  The Tribunal was not satisfied that the appellant had access to special or privileged information that was not already available to the Taiwanese.  The Tribunal noted that the appellant was unable to explain why the Chinese authorities would suspect him, as a welder, of having any information or knowledge that could be regarded as sensitive or confidential, or of any interest to the Taiwanese authorities.

6                     The Tribunal was satisfied that the Chinese authorities were not concerned that the appellant may act as a spy on behalf of the Taiwanese authorities in order to pass any information to Taiwan.  The Tribunal considered that, if the appellant was suspected of being a spy, the appellant would not have been granted a Chinese passport, nor allowed legally to leave China.  Further, the Tribunal placed no weight on documents submitted by the appellant because it was satisfied that they were not genuine; rather they were forged in order to support his claims.  The Tribunal concluded that there was no real chance that the appellant would be subjected to serious harm amounting to persecution for a Convention reason if he returned to China.

FEDERAL MAGISTRATES COURT

7                     On 13 November 2007 the appellant filed an application for judicial review of the Tribunal’s decision in the Federal Magistrates Court.  The grounds of the application were:

“1.       The RRT rejection of my refugee claims is unreasonable.  I have experienced persecution and mistreatment from the Chinese Government because the Chinese Government suspected I am a Taiwanese spy.  If I return to China, I will be persecuted by the Chinese Government.

2.         The RRT failed to take all relevant information into consideration when applying a real chance test in determining whether I will be persecuted by the Chinese government or the local authority in my hometown if I return to China.

3.         The RRT’s decision making was affected by error of law.”

8                     The Federal Magistrate found that the reasoning of the Tribunal could not be characterised as “unreasonable” so as to provide jurisdictional error in the manner suggested by the High Court in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611.  The Federal Magistrate noted that it was the Tribunal’s task to consider the extent to which it was satisfied by the claims made by the appellant and the documents which he tendered.  The Federal Magistrate was satisfied that the conclusions of the Tribunal were open to it on the evidence before it.

9                     The Federal Magistrate noted that the appellant did not identify what “relevant information” was not taken into account, and the Federal Magistrate was not able to identify any misconception by the Tribunal of legal principles which might be characterised as the “real chance test” arising from the effect of the Refugees Convention definition as adopted by s 36 of the Migration Act 1958 (Cth) (“the Act”).  The Federal Magistrate found the third ground to be “totally unexplained” and he was therefore unable to give it any meaningful application to the present decision.

10                  The Federal Magistrate also rejected the appellant’s submission that the Tribunal did not tell the appellant which documents it would not accept as being genuine, or provide him with an adequate explanation for rejecting the genuineness of the documents.

APPEAL TO THIS COURT

11                  The notice of appeal to this Court was filed on 22 July 2008. It contained two grounds. The first ground read:  “The Federal Magistrates Court failed to deal with the applicant’s claims that the RRT rejection of my refugee claims is unreasonable.  The applicant has experienced persecution and mistreatment from the Chinese Government because the Chinese Government suspected the applicant is a Taiwanese spy.  If he returns to China, he will be persecuted by the Chinese Government.”

12                  The second ground read:  “The Federal Magistrates Court failed to deal with the applicant’s claims that the RRT failed to take all relevant information into consideration when applying a real chance test in determining whether the applicant will be persecuted by the Chinese Government or the local authority in his home town if he returns to China.”

13                  The appellant appeared in person at the hearing of his appeal.  He had the assistance of an interpreter. 

14                  The appellant was unaware of the Tribunal’s reasons for decision.  These reasons and those of the Federal Magistrates Court were translated for him before the hearing commenced.  The interpreter also translated the Minister’s submissions. 

15                  The appellant told the Court that the notice of appeal had been prepared for him by a friend but that it had not been translated for him.

16                  When asked whether he wished to make any oral submissions the appellant sought to raise what I understood to be an allegation of jurisdictional error, on the part of the Tribunal, involving a contravention of s 91R(3) of the Act.  This issue had not been raised in his application to the Federal Magistrates Court and was not raised in the notice of appeal to this Court.  The issue had been raised, in the Federal Magistrates Court, by counsel appearing for the Minister.  It was drawn to the Court’s attention as a matter of fairness.  It arose from an observation by the Tribunal to the effect that the appellant had not engaged in any conduct in Australia which was likely to bring him to the attention of Chinese authorities.  The Federal Magistrate held that no contravention of s 91R(3) had occurred: see SZJGV v Minister for Immigration and Citizenship 247 ALR 451.  This was because the Tribunal had done no more than assure itself that there was no additional basis on which the appellant’s claim might be upheld and that, in any event, the Tribunal had rejected the appellant’s claim on the free standing basis that his claims about events, said to have occurred in China, were not to be believed and that he had sought to rely on forged documents.

17                  The s 91R(3) issue is not raised in the notice of appeal to this Court.  Had I thought that there may have been some substance in it I would have, nonetheless, been prepared to deal with it.  Having examined the Tribunal’s reasons, however, I consider that the Federal Magistrate was correct, for the reasons which he gave, inholding that no jurisdictional error had been made by the Tribunal.

18                  The two grounds which do appear in the notice of appeal are plainly untenable.  The Federal Magistrates Court did deal with the claims that the Tribunal’s rejection of the appellant’s application was unreasonable and that the Tribunal had failed to take all relevant information into consideration.

19                  The appeal should, therefore, be dismissed with costs.

Associate:

Dated:         11 November 2008