SZIKQ v Minister for Immigration & Citizenship

Federal Court of Australia|2008-08-12|Before: Gordon J

REASONS FOR JUDGMENT 1 This is an appeal against an order of Federal Magistrate Barnes of 2 June 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 6 December 2006. The Tribunal affirmed a decision of a delegate of the first respondent ("the first respondent") to refuse to grant the appellant a protection visa under the Migration Act 1958 (Cth)("the Act").

PROCEDURAL HISTORY 2 The appellant is a citizen of the People's Republic of China ("China") who first entered Australia on 31 August 2005. On 12 September 2005, the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (as it was then known). The first respondent refused the application for a protection visa on 25 October 2005. 3 On 18 November 2005, the appellant applied to the Tribunal for a review of that decision. On 25 January 2006, the Tribunal affirmed the decision of the first respondent. The appellant sought review of the Tribunal's decision and on 6 June 2006, by Order of Lloyd-Jones FM, the Court quashed the decision of the Tribunal and remitted the matter to the Tribunal. The matter was reconsidered by the Tribunal and, on 16 November 2006, the Tribunal again affirmed the decision of the first respondent not to grant a protection visa. 4 Before the Tribunal, the appellant claimed to fear persecution in China as he claimed to be a Falun Gong practitioner. He claimed that his family had been persecuted initially because they were Buddhists and then that he and his family had been persecuted because they practised Falun Gong. According to the appellant, his mother had become a Falun Gong practitioner in 1996 and was not only an active practitioner but a leader who had been detained by police in China in 2000 and again in 2003. It was from his mother that the appellant said he learnt about Falun Gong. He said he was an active follower who "went into trouble" in mid-2003, had his business "interrupted" by local police which required him to move location and then close his shop and that one of his friends (who was also a member of his Falun Gong group) disappeared at the end of 2004. According to the appellant it was after these events that he came to Australia "to escape the mistreatment by the Chinese officials and the local police".

THE TRIBUNAL DECISION 5 The Tribunal concluded, based on the appellant's lack of knowledge, that it was not satisfied the appellant's application invoked protection obligations in Australia. The Tribunal was not satisfied on the evidence before it that the appellant was a Falun Gong practitioner or that the appellant had the profile of a committed practitioner in China or Australia. Accordingly, the Tribunal was not satisfied that the appellant had been imputed as a Falun Gong practitioner in the past or held a well-founded fear of future persecution in China.

THE COURT BELOW 6 Before the Federal Magistrate, the appellant filed an application and supporting affidavit. The grounds stated in the application were: 1. The … Tribunal and [the first respondent] did not perform adequate procedures. 2. The Tribunal's decision was based on unwarranted assumptions and/or was based on reasoning which was irrational and/or illogical. 3. The [Tribunal] had jurisdictional errors when applied statutes and common law. 7 None of the grounds of review were particularised. However, after setting out the history of the application, the Federal Magistrate went on to consider each of the grounds.

GROUND 1 8 The Federal Magistrate considered the procedures applicable to the Tribunal and concluded that the Tribunal did not fail to comply with ss 424A and 425 of the Act. In relation to s 424A of the Act, the Tribunal put inconsistencies to the appellant in its invitation to comment on information although it was not required to do so: SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18]. 9 In considering the Tribunal's compliance with s 425 of the Act, the Court referred to and addressed the matters raised in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 and Minister for Immigration and Citizenship v SZJGY [2008] FCAFC 87 at [11]. Section 425 forms part of Div 4 of Pt 7 of that Act and is taken to be an exhaustive statement of the requirements of natural justice: s 422B. This Division serves to "provide comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule": Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 at [66]. The same point was made in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at [206]-[209] per Hayne J. 10 As a result, the question to be decided is simply, was what was prescribed by the Act to be done actually done in this case? (See SAAP 228 CLR 294 at [208] per Hayne J.) Section 425 required the Tribunal to invite the appellant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review: s 425(1). The Tribunal complied with s 425 of the Act. Firstly, it had raised the issue of credibility in their statement of reasons. Secondly, the Tribunal had raised with the appellant its concerns regarding his practice of Falun Gong; his account of his time in detention; and his prior travel outside China. Thirdly, the Federal Magistrate noted that the Tribunal had not directly addressed the issue of his business being harassed by police due to his being a Falun Gong practitioner. However, her Honour went on to note the effect of Minister for Immigration and Citizenship v SZJGY [2008] FCAFC 87 at [11]: "Where an applicant gives a chronological account of his experiences and the later elements of the account are a function of earlier events, the credibility of the later events must depend on whether or not the Tribunal accepts the earlier account." As the Tribunal had already indicated that the credibility of the appellant's claim to be a Falun Gong practitioner was in doubt, he was taken to be on notice that the "derivative claims" of persecution based on this initial claim were in issue: [21].

GROUND 2 11 As noted earlier, Ground 2 was that "the Tribunal's decision was based on unwarranted assumptions and/or was based on reasoning which was irrational and/or illogical". The Federal Magistrate dismissed this ground of review on a number of bases. First, it was not particularised and had not been addressed by the appellant in submissions. Secondly, the appellant had not established that the Tribunal's decision was affected in the manner contended, let alone in a manner sufficient to demonstrate jurisdictional error: VGAO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 68 at [56]. 12 The Tribunal based its decision that the appellant was not a Falun Gong practitioner in China on his limited knowledge of the practice. This was inferred primarily from the inconsistency between his claim that he practised in a public park with other practitioners and country information that this would have been impossible in light of the official PRC crackdown after 1999. The Tribunal further found that the appellant's alleged Falun Gong related activities in Australia would not have created a profile for the appellant which would attract the adverse attention of the Chinese government. In both instances, there was evidence before the Tribunal on which it could base its decision: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.

GROUND 3 13 Ground 3 was also dismissed. No jurisdictional error was established. The Federal Magistrate noted that not only were there no particulars provided but that the appellant was seeking to reiterate matters that had been raised under Grounds 1 and 2. 14 Finally, the Federal Magistrate referred to the appellant's affidavit which had been filed in support of the application for review. After noting that the affidavit reiterated a general contention of jurisdictional error and a claim that he had been treated unfairly, the Federal Magistrate concluded that those claims were not made out, no jurisdictional error had been established and dismissed the application with costs.

APPLICATION TO THIS COURT 15 The appellant now seeks prerogative relief of the kind issued in the exercise of the Federal Court's original jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth) (as reflected in s 476A of the Act and the limited grant of original jurisdiction under that provision). This proceeding is an appeal from a decision of the Federal Magistrates Court under s 25(1AA) of the Federal Court of Australia Act 1976 (Cth) ("FCA Act"). The appeal is in the nature of a rehearing and not an appeal in the strict sense: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507. The question on appeal is whether the decision of the Federal Magistrate is affected by some legal, factual or other error: Allesch v Maunz (2000) 203 CLR 172 at [23]. Section 28(1) of the FCA Act provides that, on appeal, the Court may affirm, reverse or vary a decision of the Federal Magistrates Court and make such judgment or order as, in all of the circumstances, is appropriate, including that the decision of the Federal Magistrate be set aside and the proceeding remitted to the Tribunal for further determination. 16 The Notice of Appeal filed in this Court on 19 June 2008 is a reproduction of the application filed in the Federal Magistrates Court (see [6] above). The appellant did not attempt to demonstrate any arguable error in the reasons of the Federal Magistrate. I cannot identify an appellable error. An appeal would have no prospects of success.

CONCLUSION 17 I would dismiss the appeal and order the appellant to pay the first respondent's costs of the appeal to be taxed in default of agreement. 18 The second order sought by the appellant is "an order to restrict the Minster for Immigration and Citizenship from removing me from Australia". Insofar as this seeks an order by the Court for the grant of a visa, that is not an order which the Court can make. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.

Associate: Dated: 12 August 2008 Counsel for the Appellant: Self Represented

Solicitor for the First Respondent: DLA Phillips Fox

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