SZHTC v Minister for Immigration & Citizenship

THE DECISION OF THE TRIBUNAL 10 The Tribunal did not accept that the appellant was a Falun Gong practitioner, or that he was involved in Falun Gong activities in China as he claimed. As a result the Tribunal did not accept that the appellant was investigated, detained or ill-treated as he claimed either in 2000, in 2005, or at any time because of his Falun Gong activities. The Tribunal did not accept that the appellant left the PRC for the reasons he claimed, and further did not accept that the appellant cannot or will not returned to the PRC, due to fear of persecution in the PRC. The Tribunal commented that the reason that the Tribunal found against the appellant in relation to these matters, was because the Tribunal did not accept that the appellant was a witness of truth. 11 The Tribunal did not accept that the appellant was a genuine Falun Gong practitioner, in either China or Australia, commenting that if he were a genuine Falun Gong practitioner, he would have been able to tell the Tribunal more about Falun Gong, as well as describe or name the Falun Gong exercises. When the Tribunal asked the appellant about the Falun Gong exercises, he was not able to do this, stating that this was because he had not practised Falun Gong for a long time, because he was not able to practise Falun Gong in China, as he was both busy and the authorities were "very strict" in their opposition to the practise of Falun Gong. The Tribunal did not accept this explanation as true and further did not accept that the appellant did not practise Falun Gong in China, due to opposition from authorities. The Tribunal found that if the appellant had practised Falun Gong in China between 1998 and 2000 as he claimed, he would have been able to tell the Tribunal more about Falun Gong, and that he would have generally been able to explain the Falun Gong exercises. The Tribunal further found that if the appellant was a genuine Falun Gong practitioner, he would have resumed his practise of Falun Gong in Australia, despite being busy with work, noting that the appellant agreed that he had not done so. 12 The Tribunal further noted that if the appellant was of interest to the Chinese authorities and persecuted for Falun Gong activities, he would not have been able to work in his business, that he told the Tribunal that he had been working for three to five years prior to coming to Australia, and that he had lived at his usual family home, where he further stated that he had lived his entire life. The appellant's explanation for this was that he was able to do this, because the authorities only became interested in him again in 2005, as a lot of books and CD's about Falun Gong were becoming available on sale at that time. The Tribunal did not accept this explanation as plausible. 13 The Tribunal found there was no plausible evidence before it that the appellant was a Falun Gong practitioner, and that he would suffer persecution from authorities in China either now or in the reasonably foreseeable future, for Falun Gong activities if he returns to China. The Tribunal was not satisfied on the evidence before it that the appellant had a well-founded fear of persecution in China within the meaning of the Convention. Consequently, the Tribunal was not satisfied that the appellant was a person to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugee Protocol, and affirmed the decision not to grant the appellant a protection visa.

GROUNDS BEFORE THE FEDERAL MAGISTRATE 14 On 5 December 2005 the appellant sought judicial review of the decision of the Tribunal in the Federal Magistrates Court. The appellant raised one ground of contention in an amended application filed on 29 May 2006, which stated that the Tribunal failed to carry out its statutory duty. Essentially these particulars outlined that the Tribunal had failed to comply with s 424A of the Migration Act 1958 (Cth) ('the Act') and as such committed jurisdictional error. Quotations from two judgments were also provided. The particulars were as follows: "(a) The only information before the Tribunal was that contained in the First Respondent's file and that given to the Tribunal by the Applicant. (b) The Tribunal was required to provide particulars of the information that was the reason, or part of the reason for affirming the decision. Migration Act 1958 s 424A. The Tribunal also was required to explain why the information was relevant and providing the applicant with an opportunity to comment upon it. (c) The above particulars had to be provided in writing. (d) The information to be given extends to that information given by the Applicant to the First Respondent as part of his application for a visa. (e) The Tribunal based it's findings on the information, or lack of information, contained in the Applicant's application for a visa and was required, by s 424A, to give particulars of the information, explain why the information is relevant and provide the Applicant with an opportunity to comment upon it. The Tribunal's failure to so act was a jurisdictional error." 15 At the hearing the appellant outlined that he did not feel the Tribunal had considered his case properly because it was biased against him and that the Tribunal did not understand his application.

THE DECISION OF THE FEDERAL MAGISTRATE 16 The Federal Magistrate declined to find the existence of bias without full particularisation and some evidence. 17 The allegation that the Tribunal had failed to understand his application was as the Federal Magistrate noted, not particularised. His Honour held that it was for the applicant to satisfy the Tribunal that he was a person to whom Australia owes protection obligations: Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 [26]-[28]; Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] 197 ALR 389 [78] per Kirby J; Abebe v Commonwealth [1999] 197 CLR 510 at [187] per Gummow and Hayne JJ. 18 His Honour rejected the submission that the Tribunal had decided his case according to assumptions rather than evidence, finding that the appellant was in effect alleging that the Tribunal had not produced its own evidence to contradict that put up by the applicant, which it was not the Tribunal's duty to do. 19 The appellant then argued before the Federal Magistrate that the Tribunal had failed to comply with s 424A because it did not write to him before the decision was handed down. The Federal Magistrate apprehended that the appellant was in effect saying that he was entitled to be provided with some form of draft reasons which he could then argue against before the Tribunal made a final decision. His Honour held that there was no requirement for this to be done. The Federal Magistrate reiterated that it was for the applicant to satisfy the Tribunal as to his claims, and that it was clear that he had had an opportunity to convince the Tribunal that his claims were genuine. 20 The appellant's submission that the Tribunal fell into jurisdictional error by using irrelevant evidence which was out of date was rejected by the Federal Magistrate, as the Tribunal had not relied upon any independent country information but had decided the application purely based on the credibility of the appellant. The Federal Magistrate held that the Tribunal did not make any jurisdictional error, in the matter in which it made its decision in this particular case, and dismissed the application.

NOTICE OF APPEAL 21 The Notice of Appeal filed by the appellant on 8 May 2007 was accompanied by an affidavit sworn by the appellant. The Notice of Appeal contains three ground of appeal outlined as follows: 1. The Tribunal had bias against me and did not consider my application according to S91R of the Migration Act 1958. 2. The Tribunal did not believe that I am a member of Falun Gong based on assumption, not evidence. 3. The Tribunal failed to notify me the reason or part of the reasons for affirming the decision. The Tribunal did not consider my application in accordance with S424A of the Migration Act 1958. 22 An affidavit was also submitted by the appellant, which stated as follows: 1. The Tribunal had bias against me and did not consider my application according to S91R of the migration Act 1958. 2. The Tribunal did not believe that I am a genuine Falun Gong member based on assumption, not evidence 3. The Tribunal failed to consider my application in accordance with S424A of the Migration Act 1958. I was not notified in writing the reason or part of the reasons for affirming the decision. The Tribunal failed to consider my claims.

First ground of appeal 23 An allegation of bias must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [69]. The appellant has provided no particulars nor pointed to any evidence to support this serious allegation. The record of the Tribunal's decision discloses nothing which would suggest the existence of bias. 24 As to the alleged failure to consider the appellant's application in accordance with s 91R of the Act, again no particulars have been provided. If it be that this aspect of the first ground relates to a failure to consider whether the appellant fell within the criteria in subsections 91R(1) or (2) of the Act, then in my opinion it fails. The Tribunal considered and addressed each of the matters raised by the appellant. Furthermore, any challenge to the conclusion reached by the Tribunal is, in effect, to seek an impermissible review of the merits of the decision: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10; Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 420. It cannot properly be asserted that there was no evidence upon which the Tribunal's decision was based: WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 at [11]. 25 If it be that this aspect of the first ground asserts a breach of s 91R(3) of the Act because the Tribunal took into account the failure of the appellant to practise Falun Gong after his arrival in Australia, then this too fails. Section 91R(3) of the Act has application only where an applicant seeks to rely on conduct in Australia in support of a claim to have a well-founded fear of persecution: SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648 at [30]-[31]. That is not the case here. Ultimately the applicant told the Tribunal that he had not practised Falun Gong in Australia and the Tribunal so found.

Second ground of appeal 26 Again, no particulars have been provided in relation to the appellant's second ground of appeal. The assumptions upon which the Tribunal is alleged to have based its decision are not identified. 27 In any event I see nothing in the findings and reasons of the Tribunal to suggest that the Tribunal based its findings on any assumptions. The reasons of the Tribunal for its decision disclose that its findings were based on the evidence provided by the appellant. If this ground of appeal is taken to be an allegation that the Tribunal failed to investigate any matter or gather evidence, there was of course no obligation upon the Tribunal to do so: WAGJ of 2002 v Minister for Immigration and Multicultural & Indigenous Affairs [2002] FCAFC 277 at [25]; Applicant S214 of 2003 v Refugee Review Tribunal [2006] FCA 375 at [34], affirmed in Applicant S214 of 2003 v Refugee Review Tribunal [2006] FCAFC 166 at [26]; S1194/2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1133 at [13]. 28 Accordingly this ground must also fail.

Third ground of appeal 29 Once again no particulars have been provided in relation to the third ground of appeal. No particular information is identified. At the hearing before me the appellant added that the Tribunal had taken irrelevant information into account but could not, when I asked him, identify what this information was. He was also not able to identify what information should have been given to him. He said that his submissions, which he read out at the hearing of the appeal, had been prepared by a Chinese friend. 30 The information relied on by the Tribunal for its decision was the appellant's oral evidence which was supplied by him for the purposes of the application for review. It falls within the exception under s 424A(3)(b) of the Act. There was accordingly no obligation upon the Tribunal under s 424A in relation to that information. 31 Finally the appellant has provided no particulars to support his assertion that the Tribunal failed to consider his claims. I am unable to discern ay such error from a consideration of the Tribunal's reasons and its decision. This ground also fails.

CONCLUSION 32 The appellant has not demonstrated any jurisdictional error going to the decision of the Federal Magistrate. Accordingly, the appeal should be dismissed with costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Solicitors for the Respondent: Blake Dawson Waldron