SZGPV v Minister for Immigration and Citizenship and Another [2007] FCA 118 (15 February 2007)

Last Updated: 16 February 2007

FEDERAL COURT OF AUSTRALIA

SZGPV v Minister for Immigration and Citizenship and Another [2007] FCA 118

SZGPV v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1884 OF 2006

COWDROY J
15 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1884 OF 2006

BETWEEN:	SZGPV Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	15 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed.
2. The appellant pay the costs of the First Respondent in the sum of $2200 pursuant to Order 62 Rule 4(2)(c) of the Federal Court Rules.
3. The name of the First Respondent be amended to ‘Minister for Immigration and Citizenship’.

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 1884 OF 2006

BETWEEN:	SZGPV Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	COWDROY J
DATE:	15 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The appellant sought leave to appeal from a decision of Federal Magistrate Emmett delivered on 13 September 2006. The application before Emmet FM sought judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) of 16 May 2005 to refuse to grant a Protection visa to the appellant.

2 The Court notes that the decision of Emmet FM was not an interlocutory decision and as such leave is not required to bring an appeal to this Court. As such the Court will treat these proceedings as an appeal.

3 The Tribunal, differently constituted, had previously affirmed the decision of a delegate of the Minister for Immigration and Multicultural Affairs (‘the Minister’) on 15 April 2004 to refuse the grant of a Protection visa to the appellant. On 21 December 2004, Smith FM remitted the matter to the Tribunal for reconsideration. The matter before this Court concerns the second Tribunal decision.

BACKGROUND

4 The appellant is a citizen of the People’s Republic of China (‘the PRC’) who claims fear of persecution by reason of his support for Falun Gong. He claims that he was being offered money to produce promotional materials for Falun Gong and that he leased his place of employment for Falun Gong lectures. The appellant claims that his friends were arrested in consequence of which the authorities learned of the appellant’s activities. The appellant claimed to have been investigated and questioned but due to the lack of evidence was not arrested. However, the Public Security Bureau (‘the PSB’) continued to question and investigate him. The appellant claimed that he left work because of his support for Falun Gong and that it was difficult to find further work.

TRIBUNAL’S FINDINGS

5 In its reasons for decision, the Tribunal noted it did not have the file of the Department of Immigration and Multicultural Affairs (‘the Department’) and in particular, the appellant’s Protection Visa Application, but noted it had the decision record before it.

6 The Tribunal found the appellant’s claims of support for Falun Gong ‘somewhat difficult to believe’. It noted independent evidence that Falun Gong practitioners have been subject to serious harm in the PRC and that the appellant, who never claimed to be a Falun Gong practitioner would be unlikely to suffer similar harm. The appellant was unable to provide a cogent reason to explain his willingness to take such risks. The Tribunal found that the appellant’s explanation of the significance of Falun Gong to be vague.

7 The Tribunal was not satisfied that the appellant was subjected to treatment amounting to persecution or that he faced a real chance of Convention-related persecution when he departed the PRC. It noted the appellant was never detained or ill-treated by police. The Tribunal did not accept the authorities pressured the appellant’s workplace to dismiss him and that it appeared he was dismissed for non-Convention related reasons. The Tribunal was not satisfied the appellant was denied employment for a Convention reason. Instead it considered that his field of professional experience was narrow.

8 The Tribunal found it implausible that the appellant was told by the police that they were launching further investigations into his activities, and that the appellant had lived in another city for six months before leaving the PRC. The Tribunal noted the appellant left the PRC on a passport issued in his own name.

APPLICATION TO THE FEDERAL MAGISTRATE EMMETT

9 The appellant asserted there was jurisdictional error as there was an apprehension of bias; that the Tribunal did not consider the Act; and that the Tribunal failed to consider the appellant’s claims. Emmett FM rejected each of these grounds and found that the Tribunal’s conclusions were open to it based upon the evidence before it.

THE APPEAL TO THIS COURT

10 The grounds of appeal relied upon by the appellant are contained within the draft notice of appeal as follows:

‘1. The Tribunal didn’t provide a rational and logical foundation for not granting me the protection visa.
2. The Tribunal didn’t refer to sufficient independent information for the consideration of my application.
3. The Tribunal didn’t consider my claims thoroughly.
4. The Tribunal failed to assess the chance of my being persecuted on my return to China because of my involvement with Falun Gong.’

SUBMISSIONS OF THE PARTIES

11 At the hearing the appellant was assisted by an interpreter. In support of his first ground of appeal, the appellant submitted that the Tribunal gave only broad reasons for its decision for refusing his application for a Protection visa, and that particular reasons should have been given.

12 In respect of the second ground of appeal, the appellant claimed that providing venues to protect Falun Gong practitioners was a serious matter and that the Tribunal failed to consider that such support was a serious matter.

13 In respect of the third ground of the appeal, the appellant relied on the claim made in the second ground. He claimed that he would be arrested if he returned to the PRC. He said that an arrest notice had been issued and that he was informed of this notice by his family. He could not provide a copy of the notice of arrest and said that his family had not received it from the PSB.

14 As to the fourth ground of appeal he said that the Tribunal had ever asked him for additional information. He claimed that the Tribunal had rejected his application without considering it thoroughly and without asking for documents. He was unable to identify any documents which he claims were necessary for his hearing.

FINDINGS

15 It was explained to the appellant that the function of this Court is not to review purported errors of the Tribunal, but rather purported errors of the Federal Magistrate: see SZAJB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 782 at [4]. This Court has no power to undertake a merits review of the decision of either the Tribunal or the Federal Magistrate. The role of the Court in an appeal such as this was stated succinctly by Mason J (as he then was) in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40; (1986) 162 CLR 24 at 40-41, where his Honour said:

‘The limited role of a Court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of a Court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation [41].’

Although no error of Emmet FM is alleged, the Court will nevertheless consider each of the appellant’s grounds in relation to the decision of the Tribunal.

16 In respect of the first ground of appeal, the Tribunal found:

‘He was not a Falun Gong practitioner, had never participated in any activity opposed to the government, and was vague when explaining what made Falun Gong in particular so significant for him that he was prepared to risk his personal safety and security consistently over several years.’

17 The Tribunal also noted that the appellant had never been detained or ill-treated by the police. Nor had the termination of his employment resulted from pressure from the authorities. The appellant claimed that he had been warned by a friend in late 2002 that the police were proposing to investigate his activities. The Tribunal found such claim unconvincing as well as his claim that he resided during the final six months in the PRC in a different city. The Tribunal was not satisfied that he had a well founded fear of Convention-related persecution and that the appellant was not a person to whom Australia owed protection obligations under the Convention relating to the Status of Refugees (‘the Convention’).

18 The reasons for the Tribunal’s findings have been clearly stated. It was unconvinced of the merits of the appellant’s claim. There is no error of law disclosed in the Tribunal’s reasoning and accordingly the Court dismisses this ground of appeal.

19 The appellant claimed that supporting Falun Gong was a serious matter which was not considered by the Tribunal. The Tribunal was satisfied that the appellant had not been persecuted whilst in the PRC and that he was able to leave the PRC openly and using his own identity. It held that the appellant ‘was able and willing to do so because he was of no adverse interest to the PRC authorities’. This finding of fact shows that the Tribunal did not consider that any help which the appellant may have provided to Falun Gong was regarded by the PRC authorities as a matter sufficient to give rise to a valid claim of persecution under the Convention.

20 The appellant’s third ground of appeal relied upon the alleged seriousness of his conduct, which has already been referred to. Although he claimed that an arrest notice has now issued the Court has no evidence to justify such a claim.

21 With regard to the fourth ground of appeal, a reading of the Tribunal’s decision shows the appellant’s claims were thoroughly considered. Emmett FM found:

‘The Tribunal identified, considered and determined the claims made buy the Applicant and the evidence provided by the Applicant in support of those claims. Ultimately the Tribunal rejected those claims. The findings and conclusions of the Tribunal were open to it on the evidence and material before it.’

No challenge is made to her Honour’s finding.

22 The appellant acknowledged that he was not a Falun Gong practitioner in the PRC. The appellant now claims to be practising Falun Gong privately in Australia, but such claim cannot be entertained in this Court.

23 The Court is unable to find any jurisdictional error in the conduct of the proceedings before the Tribunal or before Emmett FM. Accordingly the Court dismisses the appeal.

24 The Minister has sought an order that the appellant pay their costs in the sum of $2200. Since this is within a reasonable range of costs the Court will make such an order pursuant to Order 62 Rule 4(2)(c) of the Federal Court Rules.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated: 15 February 2007

Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	15 February 2007
Date of Judgment:	15 February 2007