SZHPY v Minister for Immigration and Citizenship [2007] FCA 155 (14 February 2007)

Last Updated: 22 February 2007

FEDERAL COURT OF AUSTRALIA

SZHPY v Minister for Immigration and Citizenship [2007] FCA 155

MIGRATION – no point of principle



Migration Act 1958 (Cth) s 424A

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 cited
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 cited
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 considered
SZHPY v Minister for Immigration & Multicultural Affairs [2006] FMCA 1273 affirmed
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 cited

















SZHPY v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1711 OF 2006

MIDDLETON J
14 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1711 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	MIDDLETON J
DATE OF ORDER:	14 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The first respondent be correctly named as the Minister for Immigration and Citizenship.
2. The Refugee Review Tribunal be joined as the second respondent to the appeal.
3. The appeal be dismissed with costs.

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 1711 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	MIDDLETON J
DATE:	14 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from a decision of Federal Magistrate Scarlett delivered 18 August 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 30 October 2005. The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant the appellant a protection visa.

FACTUAL BACKGROUND AND APPELLANT’S CLAIMS

2 The appellant is a citizen of the People’s Republic of China. She claims to have been a Falun Gong member since 1997 and that she participated in Falun Gong activities in Beijing in 1999 when such participation was banned. The appellant claims to have been detained by police for ten days, that she ‘nearly became mentally ill’ and was physically and mentally tortured. After her release, the appellant claims she continued to practice Falun Gong although she was strictly supervised by local police. The appellant claims she cannot return to China because of her well-founded fear of persecution as a Falun Gong practitioner.

THE DECISION OF THE TRIBUNAL

3 The Tribunal did not accept the appellant was or ever had been a Falun Gong practitioner. The Tribunal found the appellant was unable to answer basic questions regarding Falun Gong and she did not know the relevant exercises involved in the practice of Falun Gong. Before the Tribunal the appellant claimed that she was not feeling well but the Tribunal did not consider this a satisfactory explanation of the appellant’s lack of knowledge of Falun Gong. Given the finding that the appellant had not practised Falun Gong in China, the Tribunal did not accept her claims in relation to the mistreatment or detention. Consequently, the Tribunal was not satisfied the appellant had any well-founded fear of persecution in China.

THE FEDERAL MAGISTRATE’S DECISION

4 On 21 November 2005 the appellant filed an application in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision. By amended application the appellant relied upon two grounds of appeal: first, that the Tribunal failed to carry out its statutory duty by breaching s 424A of the Migration Act 1958 (Cth) (‘the Act’); and second, that the Tribunal did not believe the appellant was a Falun Gong practitioner due to bias.

5 The Federal Magistrate rejected the first ground, and held that the Tribunal did not breach s 424A of the Act as it did not rely on any information that was necessary to provide to the appellant for comment: at [22]-[23]. His Honour found the Tribunal’s decision was based upon adverse credibility findings which arose from an assessment of the appellant’s oral evidence.

6 His Honour also rejected the second ground of appeal. At the hearing the appellant submitted that the Tribunal was biased because it did not believe her, however his Honour found that the Tribunal’s disbelief did not disclose any form of bias: at [27].

GROUNDS OF APPEAL

7 By notice of appeal filed on 6 September 2006, the appellant relies on the grounds of review advanced in the Federal Magistrates Court.

8 The first ground of appeal asserts that the Tribunal was biased because it did not believe, and failed to consider, the appellant’s claims. I agree with the Federal Magistrate’s finding, that there is no basis to conclude that the Tribunal’s decision was affected by actual or apprehended bias: SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668; VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102.

9 The second ground of appeal contends that the Tribunal failed to perform the statutory duty imposed by s 424A of the Act. As the Federal Magistrate found, the Tribunal’s decision turned on the Tribunal’s assessment of the appellant’s evidence at the hearing and did not rely upon any information which fell within the scope of the obligation in s 424A(1). His Honour found the Tribunal was not required to give written particulars of the information referred to under the heading ‘Country Information’ because that material fell within the exception in s 424A(3)(a) of the Act: Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572. I agree with the conclusion and reasoning of the Federal Magistrate.

10 Mr Jordan of counsel, who appeared for the first respondent, brought to my attention the High Court of Australia decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 (‘SZBEL’), and indicated that in light of s 422B of the Act (which did not apply in SZBEL but does in this appeal) the principles enunciated by the High Court of Australia may not be relevant to my considerations. I need not examine this issue because in my view, at the hearing, the Tribunal did identify the issues upon which its decision was based and gave the appellant the opportunity to address the issues and make submissions. Accordingly, there is no basis upon which to find the Tribunal breached procedural fairness in circumstances such as those in SZBEL assuming that the principles enunciated therein apply to this appeal.

CONCLUSION

11 I will therefore order that the appeal be dismissed. I will also make orders that the title of the first respondent be changed to Minister for Immigration and Citizenship and the Tribunal be joined as the second respondent to this appeal.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Associate:

Dated: 20 February 2007

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	D Jordan
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	14 February 2007
Date of Judgment:	14 February 2007