SZJYD v Minister for Immigration and Citizenship

Federal Court of Australia|2007-05-24|Before: Moore J

REASONS FOR JUDGMENT 1 This judgment concerns an appeal against a judgment of a Federal Magistrate of 26 March 2007 with the orders taking effect on 23 April 2007: see SZJYD v Minister for Immigration & Anor [2007] FMCA 452. The appellant filed an application for extension of time to file and serve a notice of appeal on 27 April 2007. The Minister, however, conceded that such an extension of time was not required and accordingly this matter has proceeded as an appeal.

Background 2 The appellant, a citizen of the People's Republic of China ("the PRC"), arrived in Australia on 15 May 1999 on a false Thai passport. The appellant applied for a protection visa on 10 July 2001. In his visa application, the appellant claimed to fear persecution on the basis of his membership of a Christian church in the PRC as well as his participation in the pro-democracy movement. On 29 November 2001, a delegate of the then Minister for Immigration and Multicultural and Indigenous Affair refused to grant the visa 3 The appellant was apprehended by the then Department of Immigration and Multicultural Affairs on 20 May 2006 and remains in detention. It was not until the appellant was in detention that, on 12 June 2006, he sought review of the delegate's decision by the Refugee Review Tribunal. It may be noted at this point that the Tribunal assumed it had jurisdiction, although the reason for this is not clear, and that the Minister has not challenged this assumption in either the Federal Magistrates Court or this Court. As the Federal Magistrate noted at [2], the reason may have been that the appellant was not properly notified of the delegate's decision. 4 On 3 October 2006, the Tribunal faxed a letter to the manager at Villawood Detention Centre with the cover sheet stating "(a) hearing has been arranged for (the appellant)…on 11 October 2006…Please hand the attached hearing invitation letter and 'Response to Hearing Invitation' form to the applicant immediately." The attachment, addressed to the appellant, stated that the Tribunal had considered the material before it in relation to the application but was unable to make a decision in his favour on this information alone. The appellant was invited to attend a hearing to be held on 11 October 2006 and was informed that the hearing would be conducted by video link, with the Member and interpreter being in Melbourne. 5 At the Tribunal hearing, the appellant recanted his claims in the visa application. The appellant instead asserted that he had been a member of the Communist Party from 1990 to 1993, after which time he trained as a truck driver. The appellant said that he had sold his truck in 1997 as a result of the high cost of maintenance and commenced a nomadic existence working as a labourer in various provinces. The appellant described how he had paid a people smuggler to arrange for his departure from the PRC. The appellant said that he could not return to the PRC as government departments were searching for him as he was seen as a traitor who had escaped the country. The appellant claimed that he could not return to the PRC as he could be charged with disclosing state secrets or with being a Falun Gong practitioner even though he had never been a Falun Gong practitioner. The appellant described his fear of returning to his country of origin.

The Tribunal decision 6 On 14 December 2006, the Tribunal handed down its decision, which it faxed to the manager at the Villawood Detention Centre, requesting that it be given to the appellant. 7 The Tribunal was satisfied that the appellant's oral evidence at the hearing, rather than his claims in the visa application form, represented his claims to refugee status. The Tribunal did not accept that the appellant was mistreated or discriminated during the period 1989 to 1999 due to his religious or political beliefs. 8 The Tribunal accepted that the appellant was discharged from the army in 1993 and obtained a truck drivers licence, selling his truck in 1997 as a result of inability to make a profit. It accepted that the appellant moved around the PRC and had continuous work until his departure. There was no evidence to indicate that the appellant would be prevented from applying for his truck driver licence or could not obtain alternate work as a labourer on a construction site. 9 The Tribunal considered whether the appellant would be prosecuted under a law of general application and considered that punishment for illegal departure from the PRC, being the ordinary enforcement of migration law, did not make a person a refugee. The Tribunal went on to consider whether the appellant would receive an unduly harsh penalty for a Convention reason, in that he may be perceived to have an anti-government political opinion because he departed the PRC illegally. 10 The Tribunal accepted that the appellant left the PRC illegally in 1998. The Tribunal accepted that because he had left illegally, the appellant may be required to pay a fine if he and could also face a period of detention if he was to return. The Tribunal found that the appellant would not face a real chance of persecution for a Convention reason as a result of his illegal departure. If the appellant were to be prosecuted on return to the PRC it would be because of a breach of a law of general application. 11 The Tribunal considered the appellant's claim that he would be at risk of persecution because he had applied for asylum in Australia and would be accused of disclosing state secrets. The Tribunal did not accept these claims. The Tribunal outlined the confidentiality that was used with regard to applications, and found that there was no reason for the Tribunal to conclude that the authorities would become aware that the appellant had applied for asylum. Further, The Tribunal did not accept, based on the appellant's oral evidence, that he had the profile of a person who would have or could have divulged state secrets. 12 The Tribunal did not accept that the appellant would be falsely charged with being a Falun Gong practitioner. The Tribunal found that there was no real chance that the authorities would perceive him to be a Falun Gong practitioner simply because he departed the PRC illegally. The Tribunal was not satisfied that the appellant had a well-founded fear of persecution for any Convention reason.

Judgment of the Federal Magistrate 13 In his application to the Federal Magistrates Court, the appellant relied on three grounds which he asserted amounted to jurisdictional error. None were particularised. Firstly, it was contended that if the appellant was to return to the PRC he would face persecution. Secondly, the appellant alleged that the decision of the Tribunal was made without any proper grounds or without any proper investigation. Thirdly, he alleged that the Tribunal failed to understand his claims and failed to consider relevant matters. 14 The Federal Magistrate indicated that having considered the reasoning and procedures of the Tribunal, he was not satisfied that the decision of the Tribunal was affected by jurisdictional error. The first ground was rejected as failing to reveal a ground concerning jurisdictional error. The second ground was dismissed as being unparticularised and lacking substance. His Honour considered that the Tribunal did investigate the claims as presented by the appellant. Similarly, the third ground was rejected on the basis that his Honour was not satisfied that there was any failure by the Tribunal to properly understand the claims of the appellant or to consider relevant matters. 15 The appellant did not file any written submissions nor did he file any affidavit evidence as he was directed to do. At the hearing in the Federal Magistrates Court, the appellant provided a short handwritten submission which included the following: At the hearing, it turned out that my case has been proceeding in Melbourne and the hearing was conducted through cable system. Since I have lived in Sydney all these year, I wondered how this had happened. I believe the inconvenience caused by this directly related to my failure on the hearing and the adverse decision of RRT. I hope you would take this into account when you consider my review application. 16 The validity of the invitation to hearing being sent through the Manager of Villawood Detention Centre was considered by the Federal Magistrate, as was the legality of conducting the proceeding by video link. His Honour concluded that the Tribunal had complied with s 425A of the Migration Act 1958 (Cth) ("the Act") in relation to the invitation to the hearing and s 429A of the Act in relation to conducting the hearing by video. 17 His Honour was not satisfied that the decision of the Tribunal was affected by jurisdictional error. The application was dismissed.

The appeal 18 The notice of appeal did not contain any grounds of appeal. However, an affidavit sworn by the appellant on 27 April 2007 identified the following grounds:

Due to the lack of communication between me and my migration agent I had no knowledge about the refugee claims made by my agent on my behalf. I believe this is the most important reasons the RRT made the adverse decision to my application.
Even though I raised the fact at RRT hearing that I have organising anti-government demonstration against Chinese authority and consequently suffered persecution. I believe RRT made jurisdictional error by neglecting this important and relevant information. 19 At the hearing, the appellant raised a number of issues. Firstly, he said that the Tribunal did not give him sufficient time to prepare for the hearing, as he was only notified on 3 October 2007 about the hearing on 11 October 2007. Secondly, he asked why the court book which was before the Federal Magistrate did not include a transcript of the Tribunal hearing, because he had mentioned his opposition to the government of the PRC in that hearing. Thirdly, he stated that the Tribunal member had not asked him whether or not he practiced Falun Gong and yet had concluded that he had never been a Falun Gong practitioner. 20 As the Federal Magistrate stated at [10], there was no transcript before him because it had not been tendered by either party. There was therefore no evidence before the Federal Magistrate of what occurred at the Tribunal hearing. As the legal representative appearing for the Minister submitted at the hearing before me, it was for the appellant to produce a transcript if he wished to do so. 21 In relation to the appellant's claim that the Tribunal had failed to address the claim that he organised anti-government demonstrations, the Tribunal's decision recorded that this and other claims contained in the visa application were renounced by him and were rejected by the Tribunal. 22 In relation to the appellant's claim that he had inadequate time to prepare, the Minister drew attention to the Federal Magistrates observations that the applicant had not filed any affidavit evidence as he had been directed to do, and there was no evidence that the appellant had not received the invitation to hearing on 3 October 2007. On that basis, his Honour concluded that the appellant had had the seven days' notice required by the Act. 23 The appellant appeared to claim, at the hearing before me, that he had only received the Tribunal's fax inviting him to the hearing on 9 or 10 October 2007. It does not appear that this allegation was raised before the Federal Magistrate, but in any event, his Honour found that the appellant had received the hearing invitation on the day on which it was faxed, there being no evidence to the contrary. 24 The appellant has not identified any appealable error on the part of the Federal Magistrate. The appeal should be dismissed with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate: Dated: 24 May 2007 The Appellant appeared in person Counsel for the Respondent: Mr T Reilly

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