FEDERAL COURT OF AUSTRALIA

SZNNX v Minister for Immigration and Citizenship [2009] FCA 1435

Migration Act 1958 (Cth)

Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 231 ALR 412

Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109.

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407

SZNNX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1072 of 2009

MIDDLETON J

23 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the costs of the first respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

INTRODUCTION

1                          This is an appeal from a decision of the Federal Magistrates Court given on 3 September 2009 dismissing an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’).

2                          The appellant is a citizen of the People’s Republic of China (‘China’) who arrived in Australia on 10 October 2008.  On 31 October 2008 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. 

3                          A delegate of the first respondent refused the appellants’ application for a protection visa on 1 December 2008.  On 30 December 2008 the appellant applied to the Tribunal for a review of that decision.  On 26 March 2009 the Tribunal affirmed a decision of a delegate of the first respondent to refuse to grant a protection (Class XA) visa to the appellant.  On May 2009 the appellant filed an application in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision.

4                          The appellant claims to fear persecution by the Chinese authorities.  In a statement which accompanied his protection visa application, the appellant claimed that his parents had experienced significant harm from the Chinese authorities, including being tortured during lengthy periods of detention.  The appellant claimed to be afraid that the authorities would target him on the basis of his parents’ Falun Gong activities.

5                          On 13 November 2008 the appellant failed to attend an interview in connection with his protection visa application.  On 1 December 2008, the delegate refused the protection visa application on the basis that on limited information before him the delegate was not satisfied that the appellant had substantiated his claims.

6                          On 11 March 2009 the appellant attended a hearing before the Tribunal and gave evidence.  The Tribunal’s decision includes an account of the hearing, and it is apparent from that account that the Tribunal explored the appellant’s claims in detail with him and put to him for his comment a number of concerns the Tribunal had with his evidence.

7                          The Tribunal affirmed the delegate’s decision determining that:

(a)        although there is some independent country information to the effect that family members of Falun Gong practitioners may be targeted by the Chinese authorities, the appellant did not have a well-founded fear of suffering any such persecution on that basis because, as a matter of fact, neither he nor his parents were Falun Gong practitioners;

(b)       to the extent that the appellant claimed to be a Falun Gong practitioner at the introductory level, his knowledge of Falun Gong was incommensurate with that of a genuine practitioner;

(c)        the appellant’s evidence that his parents practised Falun Gong in a public park as late as October 2008 was inconsistent with independent country information, which indicates that there has been an absence of Falun Gong practice in parks since the Chinese authorities banned Falun Gong in 1999;

(d)       the appellant’s willingness to leave his baby daughter with his parents when he travelled to Australia undermined his claims that his parents were under surveillance and at risk of being placed in detention again;

(e)        a letter submitted by the appellant’s wife following the hearing, which repeated the appellant’s claims, did not persuade the Tribunal of the veracity of those claims;

(f)        as the appellant’s parents were not Falun Gong practitioners, neither they nor the appellant had experienced any difficulties with the Chinese authorities or any employers on that basis;

(g)        The appellant’s conduct in travelling to Malaysia for a holiday in August 2008 and returning to China without having enquired about seeking protection in Malaysia led the Tribunal to conclude that the appellant did not hold any genuine fear of persecution at that time; and

(h)        accordingly, the Tribunal was not satisfied that the appellant was a person to whom Australia has protection obligations.

8                          The Tribunal was not satisfied that there was a real chance that the appellant would be persecuted in China for any Convention reason if he returned.  The Tribunal therefore affirmed the decision of the delegate not to grant the appellant a protection (Class XA) visa.

PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT

9                          The appellant applied to the Federal Magistrates Court seeking judicial review of the Tribunal’s decision.  In the application before the Federal Magistrates Courts the appellant claimed that:

(a)       The [Tribunal’s] decision involved an important exercise of the power conferred by the Migration Act and Regulations;

(b)       I am entitled to a protection visa; and

(c)       I meet the refugee criteria because I face a risk of being jailed if I return to my original country.

10                        The Federal Magistrate found that:

(a)        None of the grounds of the application identified any error on the part of the Tribunal capable of judicial review;

(b)       The Tribunal afforded the appellant a hearing at which it explored his claims with him and put to him a number of its concerns with those claims;

(c)        The Tribunal’s findings were open to it on the evidence before it and for the reasons it gave, including its adverse credibility findings.  Credibility findings are a matter for the Tribunal: see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67] per McHugh J.

(d)       The Tribunal did not rely on any information which gave rise to any obligation under s 424A(1) of the Migration Act 1958 (Cth) (‘the Act’): see Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109; and

(e)        The Tribunal compiled with its obligations as set out in Div 4 of Pt 7 of the Act and thereby compiled with the applicable statutory regime in making its decision.

11                        The Federal Magistrate also noted that the appellant made no meaningful or relevant submissions in support of the application, save to say that he had told the truth to the Tribunal.

12                        In considering whether the Tribunal complied with its obligations under the Act, the Federal Magistrate noted that s 422B of the Act makes clear that Div 4 of Pt 7 of the Act is an exhaustive statement of the Tribunal’s obligations of natural justice: seeMinister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 231 ALR 412.

13                        Having found that the Tribunal complied with its obligations as set out in Div 4 of Pt 7 of the Act, the Federal Magistrate concluded that the Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review. 

14                        The Federal Magistrate determined that the grounds raised did not identify any error on the part of the Tribunal capable of judicial review and dismissed the application.

APPEAL AND CONSIDERATION

15                        By Notice of Appeal of 25 September 2009 the appellant appealed to this Court from the decision of the Federal Magistrates Court.  The appellant raises the following grounds of appeal:

(a)       There is a breach of the rules of natural justice occurred in connection with the making of the decision.

(b)       The Tribunal failed to exercise its jurisdiction by not observing procedures which it was required by the Act to observe.

(c)       The decision involved an important exercise of the power conferred by the Migration Act and Regulations. 

16                        The appellant’s notice of appeal does not provide any further particulars of the errors claimed and no meaningful or relevant submissions were made by the appellant at the hearing.  The appellant did submit that the materials he produced to the Tribunal were a true account of the events which he said took place.

17                        For the reasons expressed by the Federal Magistrate the Tribunal afforded the appellant a fair hearing and observed all of the procedures which it was required to observe, and its findings were open to it on the evidence.

18                        The grounds of appeal do not disclose any error.  The Federal Magistrate dealt with the grounds in the appellant’s application, and provided detailed reasons for judgment.  I agree with those reasons.  It is not for this Court to conduct a merits review.

CONCLUSION

19                        For the above reasons the appeal should be dismissed.

Associate:

Dated:         3 December 2009