SZJDB v Minister for Immigration & Citizenship [2007] FCA 176 (23 February 2007)

Last Updated: 27 February 2007

FEDERAL COURT OF AUSTRALIA

SZJDB v Minister for Immigration & Citizenship [2007] FCA 176

SZJDB v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2052 OF 2006




DOWSETT J
23 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2052 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	DOWSETT J
DATE OF ORDER:	23 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs of the appeal.
3. The first respondent’s name 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 2052 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	DOWSETT J
DATE:	23 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The appellant is a citizen of the People’s Republic of China. She arrived in Australia on 28 May 2000 and, on 9 June 2000, lodged an application for a Protection (Class XA) Visa pursuant to the Migration Act 1958 (Cth) (the "Act"). On 17 June 2000 a delegate of the first respondent (the "Minister") rejected the application. The appellant applied to the Refugee Review Tribunal (the "Tribunal") for review of that decision. On 29 March 2001 the Tribunal rejected the application, handing down its reasons on 24 April 2001. On 1 August 2006 the appellant applied to the Federal Magistrates Court for an extension of time in which to apply for relief pursuant to s 75(c) of the Constitution. On 11 August 2006, the Minister filed a notice of objection to competency, submitting that any such application was out of time. On 18 September 2006 the appellant filed an amended application. On 4 October 2006, a federal magistrate dismissed the application upon the ground that it was incompetent. That decision reflected the Minister’s submission that it was out of time.

2 Section 477 of the Act required that such an application be made within 28 days of "actual" notification of the Tribunal’s decision. That period could be extended by up to 56 days, but only if the application were made within 84 days of such notification. Pursuant to the Migration Litigation Reform Act 2005 (Cth) (the "MLRA") s 477 of the Act applied to proceedings in relation to a migration decision commenced on or after 1 December 2005 ‘as if the actual notification of the decision took place on’ that day, provided that actual notification had occurred before that day. This produced the superficially curious result that "actual" notification "occurred" on a deemed date. No doubt the adjective "actual" is used to differentiate between actual receipt of the relevant document and "deemed" receipt, based on the fact of despatch rather than evidence of receipt.

3 Prima facie, and assuming actual notification prior to 1 December 2005, the present application should have been filed on or before 29 December 2005. However, pursuant to subs 477(2), that time might have been extended until 23 February 2006, provided that application was made on or prior to that date. There is no direct evidence as to the date of actual notification of the decision to the appellant. The federal magistrate found that the "decision" was sent to the appellant at the address which she had given to the Tribunal but not received by her there, it being returned to the Tribunal. However the Tribunal also sent the decision to the appellant’s migration agent. There was no suggestion that it was not received by that person. Nonetheless the Minister did not rely directly, or at least solely, upon either of those aspects of service but rather invited the magistrate to proceed on the basis of s 477 and MLRA. The only factual question, then, was whether or not the appellant had received actual notification of the Tribunal’s decision prior to 1 December 2005. In the absence of direct evidence the magistrate inferred that the appellant had received actual notification before that date.

4 In considering the availability of such an inference it is of considerable significance that, although the Tribunal hearing occurred in early 2001, the appellant took no further step in the matter until 1 August 2006. It seems that she was eventually prompted to do so by the fact that in 2006, she was apprehended and taken to the Villawood Detention Centre, presumably as an illegal immigrant. As the magistrate indicated, it is unlikely that she would have waited so long for the Tribunal to rule on her application without making any enquiry, given its importance to her. According to the magistrate the appellant conceded in evidence before him that at the time of her application she knew that the Tribunal had refused her application and that she was "illegal" because the Tribunal had not accepted her claim to asylum. From these circumstances the magistrate inferred that the appellant had, prior to 1 December 2005, received notification of the decision. It may be that the circumstances demonstrated awareness of the outcome rather than notification of the decision. However I cannot assess the availability of the inference without access to the transcript. The appellant has not appealed against this finding of fact. As a result the transcript is not before me. I see no reason to adjourn the matter in order to obtain access to the transcript, given that the appellant has not challenged the finding in her notice of appeal. Further, the inference is by no means unlikely to be correct. The finding of fact stands. It follows that the application was incompetent, as the magistrate found. The appeal must be dismissed.

5 The magistrate considered a further unusual and disturbing aspect of the matter. In her application for a protection visa the appellant claimed to be a teacher and to fear persecution in China because she had practised Falun Gong ‘which is currently persecuted by the Chinese government’. She said that:

‘I believe that if I go back China I probably will be perscuted [sic] and put in jail. As I am a very active member of Fa Leng Gong and I am still practising it. which the chinese government is perscuting [sic] it.

The local Public Security Bureau of Chinese government and I had been locked up and questioned by them since I became practising Fa Leng Gong.

I have been mistreated and locked up by them and also I have the experiences that the members of Fa Leng Gong in China have been put in jail and perscuted [sic]. They are forced to stop practising it.’

6 In her application to the Tribunal she said:

‘I am not satisfied with the Department’s decision. Firstly, they claimed that I did not make this application in an earlier possible date after my arrival in Australia. It is the fact that I had just stayed in Australia for two weeks before I knew that I have the right to make the application regarding to my experiences in China. I did not planned to do that before I left China. Secondly I admit that I could not provide enough evidences to support my claim. As you know I was not prepared well for this and I have arranged my friends in China to collect them for me. But it takes a reasonal [sic] time to get them. I hope you understand my situation. I am not like the other normal Falun Gong practitioners. I am a teacher and have advocated and promoted Falun Gong in my school. so that I was put in the black list in my local Public Security Bureau and my position of being a teacher was taken off. Although the Chinese authority claimed they would not persecute Falun Gong practitioners. But it is a true fact I always say something and do it differently. Only myself can feel what they really did to me. I will not give up my right to practise Falun Gong and I will stick to it.’

7 This application was dated 29 June 2000. The Tribunal received oral evidence from the appellant on 29 March 2001. She was then represented by a migration agent, Mr Xiang Yao. She again claimed to fear persecution on account of her practice of Falun Gong. She agreed that her visa application had been filled in by her adviser in accordance with her instructions, and that it was complete and correct. She said that she primarily practised Falun Gong in private.

8 The Tribunal found the appellant’s answers to numerous questions to be unsatisfactory. In particular she was uncertain as to her residential history and, more importantly, as to when she had been detained in connection with her practice of Falun Gong. She had not mentioned any such detention in her application. The Tribunal concluded that she knew little or nothing about Falun Gong. She was unaware of the name of the person who had introduced it to China or when this had happened. She could not name any of that person’s books. She did not know the number of exercises which made up Falun Gong practice and could not name or demonstrate them. She said that she had forgotten this information but that she would know more ‘next time’. The Tribunal told her that it had great difficulty in accepting her claim that she was a Falun Gong practitioner, given her apparent lack of knowledge of it. She was given an opportunity to speak to her adviser but when the hearing resumed, she could not explain her inability to provide information which would support her claim.

9 The Tribunal referred to numerous items of country information concerning China and Falun Gong. After briefly summarizing its history and principal beliefs the Tribunal summarized the current position in China, recognizing that Falun Gong practitioners are, in certain circumstances, restricted by government action in their capacity to practise their beliefs. However the Tribunal concluded that ‘ordinary Falun Gong practitioners would be treated differently to organizers and key members’. The Tribunal correctly directed itself as to its obligations in considering the credibility or otherwise of the appellant’s claims and concluded that it could not accept her evidence because of her lack of knowledge of Falun Gong. It is difficult to see any error in this logic.

10 The appellant attached a copy of the Tribunal’s decision to her original application to the Federal Magistrates Court, tacitly adhering to her claim to fear persecution for reason of her practice of Falun Gong. However, in her amended application, filed on 18 September 2006, she abandoned that claim. She said that she had signed a blank visa application, and that her migration agent had inserted the information concerning her claimed adherence to Falun Gong. The migration agent told her that this was the only basis upon which she could successfully claim refugee status. The substance of her assertion is contained in pars 5, 6 and 7 of the amended application as follows:

‘5. As a matter of fact, I have been misled by my advisor Mr Xiang Yao. At the beginning while my application for a protection visa was lodged, I was just asked to provide a simple resume, photo and copy of my passport; and then I was asked to sign on some blank forms. I knew nothing about any details regarding to my application until 28 March 2001, which was just one day before the Tribunal’s hearing. I was very surprised that I was "described" as a Falun Gong practitioner by Mr Yao, but he told me that only the Falun Gong practitioner’s application could be accepted by the Department. Also, Mr Yao did not suggest me to attend the hearing with the excuse that I might be arrested by the Immigration Officer if I had done so. Later on, when he realized that I had insisted on attending the hearing, Mr Yao immediately decided to go with me with the excuse that he would "protect" me. It was under Mr Yao’s supervisory that I had been very scared during the Tribunal’s hearing; and I dared not expose the truth to the Tribunal. Particularly, while I was asked to talk to Mr Yao during the Tribunal’s hearing, he asked me not to say anything about the issues arising from the tribunal regarding to my poor knowledge of the Falun Gong and he said that I would be in big troubles if I said too much.

6. According to the evidences from the Tribunal’s hearing, I actually wanted to have another hearing so that I could have a chance to talk with the Tribunal independently. Unfortunately, the Tribunal failed to give me such an important chance which might put everything under the light.

7. I was teacher before I came to Australia, and my troubles with the Chinese government have mainly because of my activities to spread pro democracy ideologies to my students in the classroom. I have had to make my mind to leave my country solely for the purpose to escape from political persecution by the PRC authorities. Unfortunately, owing to misleading of Mr Yao, from the beginning to the end, I do not have any chances to give my genuine claims either to the Department or to the Tribunal.’

11 Her migration agent was subsequently disciplined by the Migration Agents’ Registration Authority for misconduct in that capacity. It seems that in 2001 and 2002 he caused a number of South Korean nationals to claim refugee status, based on allegations which were untrue or, perhaps, fraudulent, suggesting that the appellant’s otherwise unlikely story may be true. However she repeated the false claims to the Tribunal at the hearing. In her amended application to the Federal Magistrates Court, she claimed that she was frightened of the migration agent and of the consequences of admitting the falsity of her claim. That may be so, but the appellant’s conduct and that of her migration agent cannot constitute jurisdictional error by the Tribunal. The appellant has, in effect, conceded the correctness of the Tribunal’s decision.

12 The appellant also asserted in her amended application to the Federal Magistrates Court that the Tribunal had ignored important evidence. This seems to have been a reference to her statement that she would know more about Falun Gong ‘next time’. In par 6 she asserted that she had wanted an opportunity to speak to the Tribunal ‘independently’, presumably in the absence of her migration agent. However she did not ask for such an opportunity, and the Tribunal did not suggest that there would be a further hearing.

13 By her notice of appeal the appellant asserts failure by the Tribunal to comply with s 424A of the Act. She did not rely on s 424A in the Federal Magistrates Court. It is not immediately apparent from the Tribunal’s reasons that there was any failure to comply with that section, and the appellant did not identify any particular information to which it might apply. The appellant also asserts that the Tribunal failed to comply with s 425 of the Act. However the complaint seems to be based upon a misunderstanding of the section in that she asserts that the Tribunal failed to give evidence and present argument. The section requires the Tribunal to invite the applicant to do these things. It did so. In any event non-compliance with either section is no answer to the point as to competency.

14 The appellant has demonstrated no error in the magistrate’s reasons.

15 The Minister, at one stage, wished to submit that the magistrate’s decision was interlocutory and that the appellant needed leave to appeal. However it was conceded on his behalf that if the purported appeal had substantive merit, it would be difficult to resist the grant of leave. In the end, it is not necessary to address the question. The appeal must be dismissed. Any application for leave to appeal would also fail for want of any prospect of success on the merits, both as to the competency of the application to the Federal Magistrates Court and as to the appellant’s claim to fear persecution for a prescribed reason.

16 The appeal is dismissed. The appellant is to pay the first respondent’s costs of the appeal.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated: 23 February 2007

Counsel for the Appellant:	The appellant appeared in person
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent::	There was no appearance for the Second Respondent
Date of Hearing:	19 February 2007
Date of Judgment:	23 February 2007