SZIFN v Minister for Immigration and Multicultural Affairs [2006] FCA 1479 (10 November 2006)

Last Updated: 13 November 2006

FEDERAL COURT OF AUSTRALIA

SZIFN v Minister for Immigration and Multicultural Affairs

[2006] FCA 1479

SZIFN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1192 OF 2006

CONTI J
10 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1192 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZIFN Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	CONTI J
DATE OF ORDER:	7 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The name ‘Minister for Immigration and Multicultural Affairs’ be substituted for that of the first respondent.

2. The appeal be dismissed.

3. 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.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1192 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZIFN Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	CONTI J
DATE:	10 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal against the judgment of Federal Magistrate Driver given on 2 June 2006, whereby his Honour dismissed an application for judicial review of the decision of the Refugee Review Tribunal (‘the Tribunal’) given on 12 December 2005 and handed down on 5 January 2006. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (as the position was then designated) earlier made to refuse to grant a protection visa to the appellant.

2 The appellant is a citizen of the Peoples Republic of China (‘China’). He arrived in Australia in June 2005 and applied for a protection visa on 5 July 2005. Before the Tribunal the appellant claimed to have a well-founded fear of persecution because of his political opinion. He claimed to have assisted three students in their attempt to flee to Taiwan to evade persecution by the Public Service Bureau (PBS). The appellant made the further claim that he was present when a friend and one of the three students were arrested by PSB officers and that he was able to escape. The appellant claimed that he went into hiding in his girlfriend’s hometown, and she obtained a false passport for him to travel to Australia.

3 The Tribunal found that the appellant’s explanation of political and economic discussions, which he acknowledged to have undertaken with his friend, had been learned by rote. The Tribunal came to this conclusion because of the appellant’s inability to apply his asserted concept of democracy to the Chinese political system. Consequently, the Tribunal did not accept that the appellant had discussed at all the subject of political reform in China with his friends. The Tribunal also found that the appellant did not explain, satisfactorily or at all, why he was approached to help those Chinese students, particularly given he had no expertise in assisting people to escape to Taiwan, or why these students would have chosen such an evidently risky and expensive way to allegedly escape from China when they could have departed on false passports, as the appellant did in order to travel to Australia.

4 The Tribunal further found that independent country information suggested that forged official documents were readily obtainable in China, and in the light of that country information and the Tribunal’s other adverse assessments of the appellant’s credibility, it found that the documents provided by the appellant in support of his contentions were most likely not genuine. The Tribunal accepted the appellant’s contention that he travelled to Australia using a passport in another identity, yet also found that ‘even if [the appellant] were to be prosecuted for having departed China on a false passport’, it did not ‘accept that this would bring him within the definition of a refugee’. The Tribunal observed that such a prosecution ‘would be the enforcement of a law which applies generally in China’. Ultimately, the Tribunal concluded that it did ‘not accept that there is a real chance that the [appellant] will be involved in political discussion or activity if he returns to China which will bring him to the adverse attention of the Chinese authorities’.

5 Before the Federal Magistrate the appellant raised several grounds for appeal by way of review of the Tribunal’s decision, which included, inter alia, as follows:

(i) the Tribunal failed to comply with s 424A(1) of the Migration Act 1958 (Cth) (‘the Act’) by relying on five particular categories of information;
(iv) the Tribunal failed to comply with s 425 of the Act in that the apparent purpose of the Tribunal hearing was merely perfunctory or superficial, and not to genuinely facilitate the appellant’s giving of oral testimony, and further that the Tribunal merely asked general questions but did not intend that the appellant embark upon detail in the course of his testimony, nor understand his genuine concerns or issues he was raising;
(v) the Tribunal made wrong findings in its decision-making and denied the appellant procedural fairness, in that the Tribunal’s findings were based for the most part on an ill-founded assumption;
(vi) the Tribunal was biased in relation to the appellant’s documentation submitted in support of his claim, in that it was unfair and incorrect to treat every document from China as bought or forged solely based on 2000 Department of Foreign Affairs and Trade advice; moreover that the Tribunal could have had the documents examined forensically;

(vii) the Tribunal did not assess the appellant’s application fairly or carefully.

6 In addressing the Tribunal’s decision in light of the claims made by the appellant, his Honour considered that although unsupported by evidence, the appellant raised two arguable grounds regarding the operation of s 424A(1) and s 425 of the Act. However, his Honour found that neither ground was made out, principally because the Tribunal was under no obligation to inform the appellant as to the existence or otherwise of independent country information concerning the availability of forged documents emanating from China. His Honour followed in that regard Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214, to the effect that the general law fair hearing rule is excluded by the operation of s 422B of the Act, and in any event the Tribunal did disclose the information, notwithstanding the appellant’s denial. His Honour similarly found that there had not been any breach of s 425 of the Act, because the appellant was invited to the hearing and actually attended the same, and provided no evidence to support his assertion that the hearing was merely an ‘empty gesture’. The Federal Magistrate did observe that the hearing did not proceed in an amicable fashion, and that the appellant had been ‘interrupted and cut short’ for the reason that the Tribunal was apparently unimpressed with the appellant and his case. However, his Honour found that ‘[t]hat itself...falls a long way short of demonstrating jurisdictional error’.

7 The notice of appeal before the Federal Court raised two general grounds of appeal, namely that the ‘Federal Magistrate erred in law’ and ‘was wrong in finding that the [Tribunal] acted properly in its findings’. The particulars outlined in support of those two grounds included a purported breach of s 424A of the Act arising out of the Tribunal’s use of independent country information regarding forged documents adversely to the appellant’s case; a purported failure by the Tribunal to clearly provide the appellant with the information and an opportunity to comment on the information; and a purported failure by the Tribunal to comply with s 425 of the Act, in that the purpose of the hearing was only to do something ‘perfunctorily or superficially’ and the Tribunal never wanted to genuinely allow the appellant to give oral evidence. At the hearing of the appeal the appellant failed to provide any oral submissions which added to any material extent to contentions made in his written submissions.

8 I find force in the Minister’s submission that the appellant’s contention regarding s 424A should be rejected for the reasons given by the Federal Magistrate. His Honour was correct in holding that the obligation in s 424A(1) did not apply, since the country information fell within the exception provided in s 424A(3)(a) of the Act. I am also persuaded by the Minister’s submission, and the corresponding finding of the Federal Magistrate below, that the appellant’s complaint regarding the operation to the appellant’s circumstances of s 425 is without any evidentiary basis. Neither the approach of the Tribunal nor the Federal Magistrate was shown by the appellant to be vitiated by any denial of natural justice or otherwise by any jurisdictional error.

9 The appeal must be dismissed, and the appellant ordered to pay the first respondent’s costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated: 10 November 2006

Appellant appeared in person
Counsel for the Respondent:	Mr Dean Jordan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 November 2006
Date of Judgment:	10 November 2006