SZIRH v Minister for Immigration and Citizenship [2007] FCA 229 (15 February 2007)

Last Updated: 8 March 2007

FEDERAL COURT OF AUSTRALIA

SZIRH v Minister for Immigration and Citizenship [2007] FCA 229

Migration Act 1958 (Cth)

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 at 47 followed























SZIRH v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD1750 OF 2006





EMMETT J
15 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1750 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

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

THE COURT ORDERS THAT:

1. The name of the First Respondent be changed to the Minister for Immigration and Citizenship.
2. The appeal be dismissed.
3. The Applicant pay the First Respondent’s costs in the sum of $3200.00.

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	NSD1750 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

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

REASONS FOR JUDGMENT

1 The appellant claims to be a citizen of the Peoples Republic of China. He arrived in Australia on 12 July 2005 and on 11 August 2005 lodged an application for a protection (Class XA) visa under the Migration Act 1958 (Cth) ("the Act"). On 11 November 2005, a delegate of the first respondent, the Minister for Immigration and Citizenship ("the Minister"), refused to grant a protection visa. On 15 December 2005 the appellant applied to the second respondent, the Refugee Review Tribunal ("the Tribunal"), for review of the delegate’s decision. On 28 February 2006 the Tribunal affirmed the decision not to grant a protection visa. The appellant was notified of that decision on 14 March 2006.

2 On 12 April 2006, the appellant commenced a proceeding in the Federal Magistrates Court of Australia seeking orders that the decision of the Tribunal be quashed. On 22 August 2006, the Federal Magistrates Court ordered that the application be dismissed with costs. On 11 September 2006, the appellant filed a notice of appeal to the Federal Court from the orders of the Federal Magistrates Court.

3 When the matter was called on for hearing today there was no appearance for the appellant. There is evidence before the Court that he was notified by both the Minister’s solicitors and the registry staff of the hearing date. The appellant filed no written submissions in support of the appeal.

4 The Tribunal found that the appellant is a national of China and that, from 20 July 1999, the Chinese government repressed Falun Gong and persecuted Falun Gong practitioners. The appellant claimed that he feared he would be persecuted by the Chinese government because he was a Falun Gong practitioner. He claimed that he was detained for practising Falun Gong in a park and was taken to a police station along with some others. There, they were accused of being the leaders of "the evil religion" and promoting "evil religious theories to stir up trouble". He refused to sign a document promising not to practise Falun Gong and was thereupon taken to a detention centre where he was beaten many times and not given food for three days. He also claimed that he was treated badly because he was caught distributing a copy of the Falun Gong newspaper. He was sent again to a detention centre. Finally, he claimed that, after arriving in Australia, he met many Falun Gong practitioners and learned a lot through "their treasure experience". He decided he wanted to become a Falun Gong practitioner in Australia.

5 While the Tribunal considered that the appellant gave his oral evidence in a very polite and calm manner, the Tribunal found the appellant to be a thoroughly unconvincing witness. The Tribunal considered that the appellant’s evidence often seemed rehearsed and that, rather than speaking about matters that he had personally experienced, the appellant was reciting information he had learned. The Tribunal also considered that, at other times, the appellant’s evidence was given in a very tentative manner, particularly when the Tribunal questioned him to elicit precise details about how he practised Falun Gong in China.

6 After reciting a number of respects in which the appellant’s evidence contradicted information from sources consulted by the Tribunal and instances where the appellant lacked knowledge about significant Falun Gong events, the Tribunal concluded that the appellant was not a credible witness and that his claims that he was and is a Falun Gong practitioner were pure invention. The Tribunal did not accept that the appellant practised Falun Gong in China or has practised in Australia. It followed that the Tribunal did not accept that the appellant was dismissed from his job, as he claimed, or was detained, harassed or harmed in any way in China because he was a Falun Gong practitioner. Nor did the Tribunal accept that the appellant would be persecuted if he returned to China because he was a Falun Gong practitioner.

7 The grounds of review stated in the appellant’s application of 12 April 2006 are unhelpful. They are in the following terms:

"2. I believe the decision made by Refugee Review Tribunal was not fair. Because during the procession, the member and Tribunal didn’t show anything that deny, refuse my words. If she confused about my evidence, I can provide more explanation further. However, she did not give me any chance. I performed well. I sincerely hope the government of Australia would give me a chance to stay in this.

3. During the hearing she never mentioned but in the letter said that my evidence seemed rehearsed and that think I was speaking about matters not like my personally experienced but was reciting information I had learned. It is unfair."

8 The primary judge observed that, by those grounds, the appellant was to some extent challenging the factual findings of the Tribunal and findings as to credibility, which are findings of fact. As his Honour observed, that is not a basis for judicial review that would justify interference with the findings of the Tribunal.

9 The primary judge considered that the Tribunal’s decision was based largely on the appellant’s evidence and the Tribunal’s disbelief of that evidence. His Honour considered that the decision was also based upon the Tribunal’s acceptance of independent country information: where the appellant’s evidence was contradicted by such information, the Tribunal preferred the country information.

10 Examination of the Tribunal’s reasons discloses that the Tribunal put to the appellant in express terms its concerns about inconsistency between his evidence and independent information and the appellant’s apparent lack of knowledge about significant Falun Gong events. While the appellant apparently told the primary judge that the statements in the Tribunal’s reasons differed from what had been said at the hearing, there was no evidence before the primary judge concerning the hearing before the Tribunal. There was, therefore, no basis for finding jurisdictional error in that regard and the primary judge concluded to that effect.

11 The primary judge referred to the appellant’s complaint that the Tribunal did not indicate to him during the hearing that the Tribunal did not believe his evidence. The appellant was unable to tell the primary judge what difference, if any, such a procedure would have brought about. In any event, the primary judge considered that there was no obligation on the Tribunal to disclose the Tribunal’s thought processes. Nor was there any obligation to inform the appellant during the hearing that the Tribunal might not accept some or all of his evidence.

12 While it may be that a Tribunal must notify an appellant adequately of the issues to which its reasoning processes might be directed, it is not necessary and often would be inappropriate for the Tribunal to put to an applicant in so many words that he or she is lying, that he or she may not be accepted as a witness of truth or that he or she may be thought to be embellishing the account that he has given of certain events. Proceedings before the Tribunal are not adversarial and the Tribunal is not to adopt the position of the contradictor (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 at 47). There was no error on the part of the primary judge in his conclusions.

13 The primary judge also considered other possible jurisdictional errors on the part of the Tribunal of which there was no suggestion in the appellant’s application of 12 April 2006. There is no apparent error in his Honour’s observations on those matters.

14 The grounds stated in the notice of appeal are as follows:

"I do not believe that Federal Magistrates Court give me a fair judgment of my protection visa application. I am a Falun Gong member and I will be prosecuted if I go back to China. It is wrong that RRT member did not invite me to comment on any doubts she had during or after hearing. I did not have any chance to explain. RRT member also believes that my evidence seemed rehearsed without any evidence. Court should listen to the tape of RRT hearing and know what is really happening on that day."

The grounds are not helpful, but appear to be an assertion that the Federal Magistrates Court erred in failing to hold that the Tribunal committed jurisdictional error by not inviting the appellant to comment on doubts as to the appellant’s credibility. I have already referred to that matter.

15 In any event, whether or not such an omission could constitute jurisdictional error, it does not appear to be the case here. That is to say, the reasons of the Tribunal suggest that it put in express terms to the appellant its concerns about inconsistency between his evidence and independent information. There was no error on the part of the Federal Magistrates Court.

16 The appeal should be dismissed with costs. The Minister asks for costs in the fixed amount of $3,200. While there is no evidence as to the reasonableness of that fee, I am not persuaded that it is unreasonable. In the absence of the appellant it seems to me to be appropriate to accede to the Minister’s request in order to avoid unnecessary further costs. I order the applicant to pay the first respondent’s costs in the sum of $3,200.

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

Associate:

Dated: 28 February 2007

The Appellant did not appear.
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	15 February 2007
Date of Judgment:	15 February 2007