SZIFT v Minister for Immigration and Citizenship [2008] FCA 90 (18 February 2008)

Last Updated: 20 February 2008

FEDERAL COURT OF AUSTRALIA

SZIFT v Minister for Immigration and Citizenship [2008] FCA 90

SZIFT v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD1870 OF 2007

COLLIER J
18 FEBRUARY 2008
BRISBANE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD1870 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	COLLIER J
DATE OF ORDER:	18 FEBRUARY 2008
WHERE MADE:	BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1. The appeal be dismissed

2. The appellant pay the costs of the first respondent, to be taxed if not otherwise agreed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD1870 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	COLLIER J
DATE:	18 FEBRUARY 2008
PLACE:	BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1 This is an appeal against the decision of Nicholls FM delivered 3 September 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

Background

2 The appellant is a citizen of the People’s Republic of China who arrived in Australia on 28 February 2005. On 8 March 2005 the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (as it then was). A delegate of the first respondent refused the application for a protection visa on 11 June 2005. On 6 July 2005 the appellant applied to the Tribunal for a review of that decision.

3 The appellant claimed to have well-founded fear of persecution on the basis of his practice of Falun Gong. The appellant claimed that he was a doctor and that in 1998, following government action against Falun Gong, the hospital president asked the appellant about his practice of Falun Gong. He claimed that a few days later he was arrested and detained, with authorities attempting to brainwash him against Falun Gong, and torturing him. For the sake of his family, the appellant wrote a confession letter.

4 The appellant claimed that from 1999 police frequently searched his home and workplace, although he still practiced Falun Gong privately. He claimed that he travelled to Australia on a tourist visa for a holiday, during which time he received Falun Gong material, and he photographed it and took it back to China with him and distributed it to other practitioners. He claimed that after returning home he was called by a policeman and heard from a friend that the policeman knew he had brought Falun Gong material from abroad and disseminated it, and that he would be arrested. That night the appellant claimed he ran away and arranged to flee to Australia on his existing tourist visa.

Proceedings before the Tribunal

5 The appellant was invited by the Tribunal on 14 September 2005 to attend a hearing on 6 October 2005. On 10 October 2005 the appellant wrote to the Tribunal stating that he did not see the letter until 7 October 2005 as it was mixed in with a magazine and requested a new hearing date. The Tribunal postponed the hearing to 16 November 2005. The appellant attended that hearing.

6 The Tribunal was not satisfied the appellant was a credible witness due to the following:

1. The hesitant and vague evidence in relation to the appellant’s practice of Falun Gong that did not appear to be the result of nervousness or communication difficulties.

2. The appellant’s claims concerning the government’s attempt to crush Falun Gong, and his subsequent arrest in 1998 were inconsistent with independent country information that showed the action against Falun Gong did not begin until the second half of 1999. His attempts to explain this appeared to be invented excuses rather than due to nervousness as claimed.

3. The appellant’s evidence in relation to his first trip to Australia was unconvincing and appeared rehearsed.

4. The appellant failed to explain why he had to go to Australia for a holiday when he had gone to Singapore and Malaysia three months earlier.

7 The Tribunal found the appellant was not a Falun Gong practitioner, and had not suffered any harm as a result.

Application for judicial review before the Federal Magistrates Court

8 On 31 January 2006 the appellant filed an application for judicial review of the Tribunal’s decision. In his amended application the appellant claimed that the Tribunal:

• failed to recognise the principle of non-refoulement in Art 33 of the Convention relating to the Status of Refugees

• acted with a lack of bona fides and was biased

• erred in its finding on credibility

• erred in its construction of Pt 8 of the Migration Act 1958 (Cth) ("the Act").

9 His Honour found in summary:

• as the appellant was not found to be a refugee, the principle of non-refoulement did not apply: SZIFS v Minister for Immigration and Multicultural Affairs and Refugee Review Tribunal [2006] FCA 1574 and SZIBZ v Minister for Immigration and Multicultural Affairs [2006] FCA 1025

• in relation to the claim of bias, his Honour noted that such a claim must be clearly proved, and in this case it was not. On the facts, the Tribunal was not persuaded by the claims of the appellant, and found against the appellant on the basis of his lack of credit. These findings were open to the Tribunal on the material before it. There was no material before the Court to demonstrate that the Tribunal was biased or acted in bad faith

• in relation to the appellant’s claim before his Honour that the Tribunal erred in finding that he was not credible, the appellant’s credibility was an issue of fact for the Tribunal, and it was open to the Tribunal to make the finding that it did in relation to the appellant’s credibility

• in relation to the appellant’s claim that the Tribunal failed to apply Pt 8 of the Act, his Honour found that the claim was misconceived.

10 His Honour then went on to address further complaints made by the appellant during the hearing. The main complaint was that the interpreter at the Tribunal impaired the appellant’s ability to answer questions properly, as the interpreter had a strong accent and spoke too rapidly. The Federal Magistrate noted that the appellant provided no evidence in support of this, and there was no evidence to show this matter had been raised with the Tribunal. The claim was therefore rejected. The appellant also claimed that the interpreter was a spy, or living with spies, but this claim was rejected again for lack of evidence.

11 Finally, his Honour considered a possible breach of s 424A of the Act. His Honour accepted the Minister’s submissions that the information in the protection visa application was not the reason or part of the reason for the Tribunal’s decision, rather it was based on the appellant’s statements at the hearing. His Honour noted that inconsistency in the appellant’s evidence given at hearing was excluded under s 424A(3)(b) of the Act, and independent country information was excluded under s 424A(3)(a) of the Act. Further it was noted that inconsistencies were not information within s 424A under SZBYR v Minister for Immigration and Citizenship [2007] HCA 26.

Appeal to this Court

12 By Notice of Appeal filed on 14 September 2007, the appellant sought to appeal the Federal Magistrates decision on the ground that

• the Tribunal committed legal errors and

• the Tribunal did not comply with certain sections of the Act.

13 The appellant made no written submissions. At the hearing of the appeal before me this morning the appellant submitted that he was not satisfied with the decision of the Federal Magistrate and that he was nervous. Other than this general contention however, he had no specific submissions in support of his appeal.

14 The Minister made written submissions, which can be summarised as follows:

• the ground raised on appeal was exceedingly general and insufficiently particularised

• assuming that the appellant sought to reagitate the grounds of review pleaded below before his Honour, no error has been identified.

Findings

15 In my opinion, the approach of the Federal Magistrate and his Honour’s conclusions were correct. No error has been demonstrated in the decision of the Tribunal, and there is no evidence of bias or bad faith in the Tribunal as claimed below.

16 Accordingly, I order that:

1. The appeal be dismissed

2. The appellant pay the costs of the first respondent, to be taxed if not otherwise agreed.

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

Associate:

Dated: 18 February 2008

Counsel for the Appellant:	The appellant appeared in person
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	18 February 2008
Date of Judgment:	18 February 2008