SZHQK v Minister for Immigration and Multicultural Affairs [2006] FCA 1499 (17 November 2006)

Last Updated: 17 November 2006

FEDERAL COURT OF AUSTRALIA

SZHQK v Minister for Immigration and Multicultural Affairs [2006] FCA 1499

SZHQK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1584 OF 2006

ALLSOP J
17 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1584 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	ALLSOP J
DATE OF ORDER:	17 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. That the Refugee Review Tribunal be joined to this appeal as the second respondent.
2. The appeal be dismissed.
3. The appellant pay the costs of the first respondent, the Minister for Immigration and Multicultural Affairs.

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 1584 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	ALLSOP J
DATE:	17 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from oders made by the Federal Magistrates Court of Australia on 1 August 2006 dismissing an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 12 October 2005 and handed down on 1 November 2005. The Tribunal affirmed a decision of a delegate of the respondent Minister made on 27 June 2005 to refuse the applicant a protection visa.

2 The appellant is a citizen of the People’s Republic of China who arrived in Australia on 1 February 2005. On 22 March 2005 he lodged an application for a protection visa. The review of the Tribunal was attended by the appellant who gave oral evidence at the hearing.

3 The appellant’s claims are that he fears persecution in China by reason of his membership of Falun Gong. Specifically, in his application for a protection visa and in his oral evidence to the Tribunal he claimed that he learnt Falun Gong from his wife in 2003. They practiced it with other local people. Some of these people were arrested. The males were tortured and the females were imprisoned. The appellant fears that if he is returned to China he will be imprisoned. He said that his wife had been detained in China and that his wife warned him not to return.

4 The Tribunal’s decision was based on the complete disbelief of the appellant. This disbelief arose principally from questioning by the Tribunal about Falun Gong and aspects of it. The appellant was not able to give any information to questions posed by the Tribunal which it thought were central to his claims. The appellant provided no evidence that he was involved in practising Falun Gong in Australia. The Tribunal concluded that he was not a Falun Gong practitioner and had never been a Falun Gong practitioner. The fact that the appellant said that he was such a practitioner was central to his overall claims and therefore the Tribunal concluded that none of the appellant’s claims could be accepted as true. The Tribunal thereby concluded that the appellant did not face a real chance of persecution should he be returned to China now or in the foreseeable future.

5 The Federal Magistrate dismissed the appellant’s application for judicial review as his Honour was satisfied that there was no jurisdictional error. The application before the Federal Magistrate had a number of grounds as follows:

"1. The Tribunal had bias against me and conclused that I am not a Falun gong practitioner and have never been a Falun Gong practitioner.

2. Because of the above-mentioned bias, the Tribunal did not consider by application according to the jurisdictional steps.

3. The Tribunal did not refer to any independent information for the consideration of my application.

4. The Tribunal did not consider any of the information provided my me in writing because the above-mentioned bias against me from the hearing.

5. My application was refused in a very simple way, just because that the Tribunal did not believe that I am a Falun gong practitioner. However, this is not supported by any evidence, just the bias of the officer against me.

6. The Tribunal did not consider my claims in full details.

7. The decision to refuse my application was not supported by evidence or materials.

8. I will submit more documents for the consideration of my review application."

[errors included as in original]

6 The Federal Magistrate said that the bias allegation was unsupported by any particulars and there was no evidence to support it. The Federal Magistrate rejected the claim that the Tribunal did not refer to country information as it did. The Federal Magistrate said that the Tribunal summarised and considered all of the appellant’s claims but that they fell in effect with the total disbelief of his assertion that he was a Falun Gong practitioner. The Federal Magistrate concluded that there was no basis for the assertion that the Tribunal’s decision was unsupported by the material before it.

7 The notice of appeal contains the following grounds:

"2. The Tribunal failed to carry out its statutory duty. The Tribunal was required to provide particulars of the information that was the reason, or part of the reason for affirming the decision according to S 424A of the Migration Act 1958. The Tribunal was also required to explain why the infromatio nwas relevant and provide the applicant with an opportunity to comment upon it. The Tribunal failed to do so.

3. The Tribunal had bias against me and could not make a decision based upon evidence.

4. Federal Magistrates Court did not consider my application accordingly. The Tribunal failed to consider my application according to S424A of the Act."

[errors included as in original]

8 The appellant filed no written submissions. His oral submissions were directed to what he said happened to him in China which appeared to go beyond the claims concerning Falun Gong and be based on anti-government activity. There were no submissions put as to the orders and reasons of the Federal Magistrate. He also claimed that he had a poor memory.

9 As to the three grounds of appeal, the first, the s 424A ground is raised for the first time. The Minister objects to the matter being raised at this point. If there were any foundation to it I would permit the matter to be raised as long as there was no requirement for evidence. It appears from the face of the decision of the Tribunal that it relied upon what was said to it at the Tribunal by the appellant and in this case there is simply no basis for the application of s 424A because of the terms of s 424A(3)(b).

10 As to second ground and the allegation of bias there is no foundation for it and no foundation for the conclusions that the Federal Magistrate erred in this respect.

11 The third ground of appeal does not seem to identify any independent ground other than s 424A.

12 I see no basis to conclude that the learned Federal Magistrate committed any error at all.

13 The Federal Magistrate joined the Tribunal to the application. The appellant did not join the Tribunal to the appeal. That should be done. Therefore the orders of the Court are:

1. That the Refugee Review Tribunal be joined to this appeal as the second respondent.

2. The appeal be dismissed.

3. The appellant pay the costs of the first Respondent the Minister for Immigration and Multicultural Affairs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated: 17 November 2006

The appellant appeared in person:

Counsel for the First Respondent:	Ms G Broderick (Slr)
Solicitor for the First Respondent:	Clayton Utz
Date of Hearing:	13 November 2006
Date of Judgment:	17 November 2006