SZMTT v Minister for Immigration and Citizenship [2009] FCA 179 (5 March 2009)

Federal Court of Australia

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SZMTT v Minister for Immigration and Citizenship [2009] FCA 179 (5 March 2009)

Last Updated: 16 July 2009

FEDERAL COURT OF AUSTRALIA

SZMTT v Minister for Immigration and Citizenship [2009] FCA 179

SZMTT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 32 OF 2009

COWDROY J
5 MARCH 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 32 OF 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMTT Appellant

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

JUDGE:	COWDROY J
DATE OF ORDER:	5 MARCH 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The Appellant pay the costs of the First Respondent.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 32 OF 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMTT Appellant

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

JUDGE:	COWDROY J
DATE:	5 MARCH 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals from the decision of Federal Magistrate Scarlett delivered on 4 December 2008 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 28 August 2008. The Tribunal’s decision affirmed a decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse to grant a Protection (Class XA) visa to the appellant.

BACKGROUND

2. The appellant, who was born on 15 March 1978 in Fuqing, is a citizen of the People’s Republic of China (‘the PRC’). The appellant arrived in Australia on 22 January 2008. On 22 February 2008 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the application for a protection visa on 15 May 2008. On 13 June 2008 the appellant applied to the Tribunal for a review of that decision.
3. In his application for a protection visa, the appellant claimed that after he left school, he started working on an eel farm in his home town, which was operated by one of his relatives. The relative established a new eel farm in another part of Fujian Province and the appellant was invited to manage that farm, and also given 10 per cent of the business. The appellant claimed that a distant relative of his was involved in Falun Gong and that he kept in touch with such relative. The appellant claimed that on one occasion, when he returned from the eel farm to his home village, he was taken to the Public Security Bureau (‘the PSB’) where he was interrogated. The appellant claimed that the police found out that his relative had been involved in Falun Gong and suspected that the appellant may have been involved in assisting his relative to flee from them.
4. The appellant recorded in his statement in support of his visa application that the police were from the 610 Office, and that they treated him in a very brutal manner. He said he was subjected to torture, which included the use of electric sticks, belts and rubber sticks. He claimed to have been detained by the police for a fortnight from 1-15 March 2007, and during that time was subjected to mistreatment and humiliation.
5. After he was released, the appellant claimed that he wanted to take legal action against the police. He claims that they discovered this intention and on 4 April 2007 he was again detained, tortured and threatened with being sent to a labour camp. The appellant claimed that after this second detention he assisted people to distribute copies of Falun Gong promotional materials, but that one of the people whom he had assisted was arrested in January 2008. The appellant feared for his own safety after this arrest and he left the PRC. He claimed that shortly after he left the PRC the police attended both his home and the eel farm with search warrants and interrogated members of his family in an effort to find him.

THE TRIBUNAL DECISION

6. Letters of invitation dated 16 June 2008 and 30 June 2008 were sent to the appellant inviting him to attend a Tribunal hearing. Such letters also invited the appellant to provide any further information in support of his claim. The appellant appeared before the Tribunal on 21 July 2008, but he provided no further information.
7. The Tribunal found the appellant gave inconsistent and implausible evidence that changed during the course of the hearing and accordingly concluded that he was not a credible witness. The Tribunal did not accept that the appellant assisted members of Falun Gong in the PRC. It did not accept that he had been detained by the police, and it did not accept his claim to have been tortured. It did not accept that he would be of any interest to the authorities were he to return to the PRC. The Tribunal also found that the appellant would not seek out or engage in Falun Gong or anti-government activities if he returned to the PRC.
8. For these reasons the Tribunal concluded that the appellant was not a person to whom Australia owed protection obligations under the 1951 United Nations Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees.

APPLICATION IN THE FEDERAL MAGISTRATES COURT

9. By application filed in the Federal Magistrates Court of Australia on 23 September 2008 the appellant sought judicial review of the Tribunal’s decision.
10. Before Scarlett FM the appellant claimed:

(i) Jurisdictional error has bee [sic] made. RRT did not consider my evidence fairly.. [sic]
(ii) Procedural Fairness has been denied. RRT did not use favourable cases to my application.
(iii) RRT failed to consider the risk I return to China. I will be put in jail if I return to China.

11. As to the first claim, Scarlett FM found that the Tribunal did consider the appellant's evidence, both his original claims made in the statutory declaration accompanying his application for a protection visa, and his oral evidence to the Tribunal. However, the Tribunal concluded that the appellant’s evidence lacked credibility. His Honour observed that it is a well established principle that credibility is a matter for the Tribunal see: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407. His Honour found that it was open to the Tribunal to make its credibility finding, and the Court could not interfere with that finding on an application for judicial review.
12. As to the appellant’s second claim, his Honour found nothing in the Tribunal record to suggest that the appellant was treated unfairly. Although the appellant claimed that he was nervous in answering questions, his Honour found that the Tribunal was entitled to ask questions of the appellant; that there was nothing extraordinary in the nature of the questions; and that there was nothing in the Tribunal record of hearing to suggest that the appellant was nervous at the hearing. Scarlett FM further found that there was no indication that the Tribunal failed to meet the statutory requirements of procedural fairness under Division 4 Part VII the Migration Act 1958 (Cth) (‘the Act’). Finally his Honour dismissed the proposition that a failure by the Tribunal to use favourable cases to the appellant’s application could be a ground of jurisdictional error.
13. In regards to the third ground Scarlett FM found that the Tribunal did specifically consider the risk of harm if the appellant was to return to the PRC, but found that he was at no risk because of perceived or suspected support of Falun Gong members or because he was considered a major anti-government activist.
14. Having found no jurisdictional error, Scarlett FM dismissed the application.

APPEAL TO THIS COURT

15. On 13 January 2009 the appellant filed in this Court a Notice of Appeal from the decision of Scarlett FM. The appellant raises the following grounds of appeal:
    1. Refugee Review Tribunal refused my application with unjustice [sic]. Leaving China legally doesn’t mean I was not been persecuted in China.
    2. I clarify all my points at the hearing of the Federal Magistrates Court, but the Judge did not consider my application fairly. I am Falun Gong practitioner. I will be persecuted if I return to China.
    3. I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court and RRT. They all failed to assess my risk to return to China.

SUBMISSIONS OF THE APPELLANT

16. The appellant appeared before this Court unrepresented but with the assistance of an interpreter. The appellant submitted in support of his appeal that the Federal Magistrate made an erroneous assessment of his claim. The appellant claimed that he would be persecuted if he returned to China because he became a member or supporter of Falun Gong. Upon questioning the appellant said he joined the Falun Gong in September 2007 and remained a member until November 2007 when he lost contact with other practitioners.
17. As to the second ground of appeal the appellant claimed that the Federal Magistrate did not consider that he would be persecuted if he returned to the PRC.
18. As to the third ground of appeal the appellant submitted that the Federal Magistrate failed to assess the chance that he would suffer persecution if he returned to the PRC.

FINDINGS

19. Before turning to the specific grounds of appeal, it must be noted that all of the appellant’s grounds of appeal raise a similar issue to that which was considered by Scarlett FM in that they all challenge factual findings of the Tribunal. In his decision his Honour wrote at [15]:

The Tribunal considered the applicant's evidence, but found the applicant's evidence to be lacking in credibility, and because the Tribunal was not satisfied the applicant was a credible witness, ultimately, the applicant's claim failed. It is well-established that credibility is a matter for the Tribunal. It is a factual finding. It has been described as a factual finding par excellence in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham. The Tribunal considered the evidence and, based on that evidence, made its credibility finding. It was open to the Tribunal to do that and it was not open to the Court conducting judicial review to interfere in those circumstances. Footnote omitted.

20. This Court is not empowered to conduct a merits review of factual findings made by the Tribunal: see Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at 391-392; Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40; (1986) 162 CLR 24 at 40-42; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10].

First Ground of Appeal

21. In relation to the first ground of appeal, the appellant appears to have advanced two particulars in support of his claim that the Tribunal rejected his application unjustly. The appellant stated in his Notice of Appeal that his leaving the PRC legally on his own passport was not incompatible with him being persecuted in the PRC by the authorities. In his hearing in the Court he advanced a separate particular, that being that he had joined Falun Gong from about September 2007 untill November 2007.
22. The first particular relied upon by the appellant refers to the fact that the Tribunal found it unlikely that the appellant would have been able to leave the PRC so easily if the appellant had been arrested and tortured by the authorities on two occasions as he had claimed. The second particular appears to conflict with the appellant’s claims before the Tribunal which was that he merely aided Falun Gong members and was not a member himself.
23. Both particulars challenge factual findings of the Tribunal. Whether or not the appellant’s method of leaving China was incompatible with his being persecuted in the PRC is beside the point. The Tribunal found that the appellant was not threatened, harassed or detained by the authorities. The Tribunal also found that the appellant had not assisted members of Falun Gong in any way or was of any interest to the authorities. For the reasons outlined earlier the Court cannot disturb these findings and accordingly the first ground must be rejected.

Second Ground of Appeal

24. The appellant has not advanced any particulars in relation to his second ground of appeal, namely that the Federal Magistrate did not consider his application fairly. The Court can find no evidence of this being the case.
25. In relation to the appellant’s claims that he was a Falun Gong practitioner and that he would be persecuted if he was to return to the PRC, the Court repeats what has already been said. The appellant’s claim to be Falun Gong member directly contradicts what he claimed before the Federal Magistrate and cannot overturn the Tribunal’s finding that the appellant was not involved with Falun Gong in any way and was not of any interest to the authorities in the PRC. The appellant’s claim that he would be persecuted in the PRC cannot challenge the finding of fact by the Tribunal that the appellant would not be persecuted if he was to return to the PRC.

Third Ground of Appeal

26. Both the Tribunal and Scarlett FM specifically addressed the question of whether the appellant was likely to suffer harm if he returned to the PRC. To repeat once more, the Tribunal found as a matter of fact that the appellant was not involved with Falun Gong, was not involved in anti-government activities and was therefore not of any interest to the authorities in the PRC. Accordingly, the Tribunal found that the appellant would not be under any risk of persecution if he was to return. The Tribunal clearly did assess the appellant’s risk of persecution if he was to return to the PRC. Scarlett FM found at [22] that the:

Tribunal... did consider the risk if the applicant returned to China and was not satisfied that he had a well-founded fear of persecution. The applicant claims that the Tribunal’s finding is incorrect, but that is a challenge to the merits of the Tribunal’s findings and it is not a submission the Court can entertain.

This demonstrates that Scarlett FM also specifically addressed the issue and found that the Tribunal had made a factual finding which the Court could not disturb. This Court agrees with his Honour and accordingly the third ground of appeal must fail.

27. It follows that the appeal must be dismissed with costs.
    

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated: 5 March 2009

Counsel for the Appellant:	Appellant appeared in person
Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	27 February 2009
Date of Judgment:	5 March 2009