SZIYF v Minister for Immigration and Citizenship [2007] FCA 132 (16 February 2007)

Last Updated: 16 February 2007

FEDERAL COURT OF AUSTRALIA

SZIYF v Minister for Immigration and Citizenship [2007] FCA 132

SZIYF v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1830 OF 2006

BESANKO J
16 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1830 OF 2006

BETWEEN:	SZIYF Applicant
AND:	MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	16 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Leave to appeal be refused.
2. The applicant pay the first respondent’s costs of the application.

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 1830 OF 2006

BETWEEN:	SZIYF Applicant
AND:	MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BESANKO J
DATE:	16 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for leave to appeal from orders made by a Federal Magistrate. The Magistrate made an order dismissing an application for constitutional writs in respect of a decision of the Refugee Review Tribunal. The order for dismissal was made under r 44.12(1) of the Federal Magistrates Court Rules 2001. An order for dismissal under that rule is interlocutory (r 44.12(2)) and therefore leave to appeal is required: Federal Court of Australia Act 1976 (Cth) s 24(1A). It is not necessary to discuss the principles which are relevant to the question of whether leave to appeal should be granted. They are well known (see, for example, Décor Corporation Pty Ltd v Dart (1991) 33 FCR 397). It is sufficient for me to say that I have reached the conclusion that the decision of the Magistrate is not attended with sufficient doubt to warrant a grant of leave.

2 The applicant is a citizen of the Peoples’ Republic of China. He arrived in Australia on 11 September 2005. On 19 October 2005 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) (‘the Act’). On 3 January 2006 a delegate of the Minister for Immigration and Multicultural Affairs refused his application for a protection visa. On 2 February 2006 the applicant applied to the Tribunal for a review of that decision.

3 The applicant claimed that he feared persecution in China because the Chinese authorities had found him with Australian newspapers, and then later with a book about Falun Gong. The Tribunal rejected his claim. The Tribunal member made the following important findings:

1. In his application for a business visa to come to Australia, the applicant gave a different address in China to that which he gave in his application for a protection visa. This matter was raised with the applicant in a letter dated 29 March 2006 and sent to him by the Tribunal pursuant to s 424A of the Act. I will refer to this letter as ‘the s 424A letter’.
2. The applicant claimed to have met a ‘Mr Wang’ who gave him the newspapers. However, his evidence about when he met this person was inconsistent with Department records about any person called ‘Mr Wang’ who returned to China at the time stated by the applicant. This information was raised with the applicant in the s 424A letter.
3. The evidence about when the applicant decided to leave China was inconsistent with information in his business visa application, which suggested he had decided to leave China some time before he became of interest to the authorities. This matter was raised in the s 424A letter.
4. A number of the applicant’s claims were implausible.
5. There was a significant delay between the applicant suffering the claimed harm and his departure from China, which suggested that the applicant’s fear was not genuine.
6. There were a number of contradictions and anomalies that fatally undermined the applicant’s credibility, leading the Tribunal to conclude that the applicant’s claims were fabricated.

4 The applicant’s grounds of application in his amended application filed in the Federal Magistrates Court were as follows:

‘1. The Tribunal failed to afford the applicant procedural fairness in accordance with s 424A of the Migration Act by not giving the applicant in writing particulars of information the Tribunal considered were the reason or part of the reason for affirming the delegate’s decision not to grant a protection visa.
Particulars:

a. The Tribunal found that the applicant’s name could not have been a late addition to the list of names given to the Australian organisers of the expo by inferring from "evidence associated with his business visa application" that the applicant’s name was on a list sent to the Australian embassy on 12 August (CB 128.7).
b. The s 424A letter dated 29 March 2006 sent to the applicant simply warned that "If the Tribunal were to conclude that you did not pay a bribe to obtain a passport in 2004, it would undermine the credibility of other claims made" (CB 125.9).
c. The Tribunal drew adverse inferences from information not provided by the applicant.

2. The Tribunal committed a jurisdictional error of law by not considering my application in accordance with s 91R of the Act in circumstances where the Tribunal did not assess the risk of persecution upon my return to China because of my involvement with Falun Gong.’

5 The Magistrate considered that the application did not raise an arguable case for relief. As to the alleged failure to comply with s 424A of the Act the Magistrate examined the s 424A letter and concluded that it squarely raised the information associated with the applicant’s business visa application. He said that the allegation that the Tribunal had failed to comply with s 424A of the Act was not arguable. As to the assertion that there was a failure to comply with s 91R of the Act, the Magistrate noted the applicant’s submission that the Tribunal did not assess the risk of the applicant facing persecution in China because of his involvement with Falun Gong. The Magistrate said that the difficulty with that argument was that the Tribunal had found that the applicant’s claim had been fabricated and that, having rejected the applicant’s claim, the Tribunal did not need to consider it any further. The Magistrate considered whether it was arguable that the Tribunal had committed a jurisdictional error in some other way. He concluded that it was not arguable that the Tribunal had otherwise committed a jurisdictional error.

6 In his notice of appeal to this Court the applicant asserts:

The Tribunal failed to afford the applicant procedural fairness in accordance with s 424A of the Migration Act by not giving the applicant in writing particulars of information the Tribunal considered were the reason or part of the reason for affirming the delegate’s decision not to grant a protection visa. The Tribunal found that the applicant’s name could not have been a late edition to the list of names given to the Australian organisers of the expo, by inferring from ‘evidence associated with his business visa application’ that the applicant’s name was on a list sent to the Australian Embassy on 12 August’.

7 The applicant provided the following information as to the grounds upon which he challenged the Magistrate’s decision in his affidavit. He said:

‘The S424A letter dated 29 March 2006 sent to the applicant simply warned that "if the Tribunal were to conclude that you didn’t pay a bribe to obtain a passport in 2004, it would undermine the credibility of other claims" (B125.9).
The Tribunal drew adverse inferences from information not provided by the appellant.
The Tribunal committed a jurisdictional error of law by not considering my application in accordance with s 91R of the Act in circumstances where the Tribunal did not assess the risk of persecution upon my return to China because of my involvement with Falun Gong.
Because of the abovementioned errors, I lodged my application to be reviewed at Federal Magistrates Court. The Court did not fully consider my application and could not find the abovementioned errors. I hereby file a notice of appeal to Federal Court.’

8 The focus of the applicant’s claim that the Tribunal had not complied with s 424A of the Act was the information which contradicted, or tended to contradict, his account of having to bribe his superior to include him in a group travelling to Australia. His account was that he borrowed a Falun Gong book, that that fact became known to a teacher and a few days after that he bribed his superior. The applicant’s account was contradicted by a list of names, including the applicant’s name, which was prepared in Australia and sent to the Australian Embassy on 12 August 2005. The Tribunal reached the conclusion that it established that the applicant’s name was provided to the Australian expo before 12 August 2005. I have considered carefully the terms of the s 424A letter. In this respect, it complied with the provisions of s 424A. I have also considered whether it complied with s 424A in terms of the other matters which were arguably the reason, or part of the reason, the Tribunal affirmed the decision under review. In my opinion, it complied with the terms of the section.

9 As to the alleged failure to comply with s 91R of the Act, nothing has been put on the application to suggest that the Magistrate’s reasoning was in error. Nor has anything been put on the application to suggest that his conclusion that the Tribunal did not otherwise commit a jurisdictional error is arguably wrong.

10 In the circumstances, the Magistrate’s decision is not attended with sufficient doubt to warrant a grant of leave to appeal and leave to appeal is refused. The applicant must pay the first respondent’s costs of the application.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated: 16 February 2007

Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	T Quinn
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	15/02/2007
Date of Judgment:	16/02/2007