SZLEF v Minister for Immigration and Citizenship

Federal Court of Australia|2008-06-06|Before: Reeves J

INTRODUCTION 1 This is an appeal against a judgment of Federal Magistrate Cameron delivered on 18 March 2008, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal'). The Tribunal's decision was delivered on 12 July 2007 and affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

BACKGROUND - SUMMARY OF FACTS 2 The appellant is a citizen of the People's Republic of China ('China'). He came to Australia on 26 February 2007 and lodged an application for a protection visa on 1 March 2007. That application was refused by the Minister's delegate on 24 March 2007. Upon the Tribunal affirming the delegate's decision, the appellant sought judicial review of that decision before the Federal Magistrates Court in an application dated 24 April 2007. 3 In a statement submitted with his application for a protection visa the Appellant claimed that he commenced practicing Falun Gong at the end of 1997 when he met a Ms Yang who was a Falun Gong practitioner. He said that in September 2002, after he had 'clarified the truth to others about Falun Gong' he was arrested by police and detained for two months. He was later forced to denounce Falun Gong. He was kept under surveillance after his release. In 2006, he began to work as a seaman which created a chance to leave China. When the vessel he was working on berthed at Port Kembla in South Australia, he failed to return from shore leave and has remained in Australia since.

THE TRIBUNAL'S DECISION 4 The appellant gave evidence before the Tribunal on 4 June 2007 and tendered his passport issued in October 2003. At that hearing the appellant gave a different account of his initial involvement with the practice of Falun Gong. He said he became a Falun Gong practitioner between 1997 and 1998 but he 'formally joined' Falun Gong in around 2002, after he met a Mr Sun who was a Falun Gong practitioner. He claimed to have been involved in Falun Gong activities in China and claimed that the authorities were therefore keeping an eye on him. He answered questions about various aspects of Falun Gong. He said that if he returned to China nothing would happen if he did not do the Falun Gong exercises but if he insisted on doing them 'then there would be trouble'. 5 The Tribunal asked the appellant about his written statement submitted with his application for a protection visa and his reference to a Ms Yang. He said that he met her at a meeting but his real contact was with Mr Sun. He started practising Falun Gong in 2002 and not 1997. When asked whether he had been arrested in September 2002, detained for two months and tortured he stated 'no'. He said he thought the person who helped him with his application may have 'put that in' his statement. 6 The Tribunal found that the appellant's critical claims lacked credibility and could not be accepted. It noted that he claimed he had difficulty obtaining his passport because he claimed the local police were aware that he had a record relating to Falun Gong activities, yet he later said his only contact with the Chinese authorities was in the summer of 2004. The Tribunal also noted that he claimed that he had no problems leaving China yet independent country information indicated that the appellant would not have been issued with a passport, nor would he have been allowed to leave China, if he was indeed known to the police on the basis of his Falun Gong activities. 7 The Tribunal found itself unable to accept the appellant's claims that he attended meetings and discussion groups with Falun Gong practitioners in China, that he had read a book or watched tapes on Falun Gong, or that he practised Falun Gong exercises in China, distributed leaflets or CDs in China, or that he genuinely feared persecution because of his practice of Falun Gong in China. It observed that if he had such fears he would have made attempts to leave China soon after he had obtained his passport in 2003, rather than waiting three years. 8 The Tribunal also found that the appellant engaged in Falun Gong activities in Australia for the purpose of strengthening his claim to be a refugee and accordingly disregarded that conduct pursuant to s 91R of the Migration Act 1958 (Cth) ('the Act'). 9 Accordingly the Tribunal found that the Appellant did not have a well founded fear of persecution on any Convention ground at the time of its decision or at any time in the reasonably foreseeable future. It was therefore not satisfied that the appellant was a person to whom Australia owed any protection obligations under the Convention.

THE FEDERAL MAGISTRATE'S DECISION 10 The appellant's application for review in the Federal Magistrates Court stated that his grounds were 'as per RRT letter page 11 to 13'. The appellant also filed a document with the Court on 30 July 2007, which was received as written submissions. It raised a number of issues including the following: · the Tribunal did not accept that he was a Falun Gong practitioner; · when he was asked questions at the hearing his answers were not wrong; · there was nothing wrong with his demonstration of Falun Gong exercises at the Tribunal hearing; and · he did not have money to leave China in 2003. 11 The appellant also made a number of oral submissions to the Federal Magistrate, which included claims that the Tribunal relied on material contained in his protection visa application when it said that it would not, and that the Tribunal's recording of the evidence at the hearing was incorrect. 12 The Federal Magistrate considered each of the application for review, the written submissions and the oral submissions in turn. His Honour found that the application for review did not disclose any breach of s 424A, s 425, or any other provision of Division 4 Part 7 of the Act. He observed that the application did 'not articulate any particular basis upon which a finding of jurisdictional error might be made'. In relation to the written submissions, his Honour found that throughout the submissions the appellant was seeking merits review beyond the jurisdiction of the Court and no jurisdictional error had been made out. His Honour rejected the claims raised in the appellant's oral submissions, holding that they were unsupported by the evidence. Finally, his Honour found that the Tribunal correctly applied s 91R(3) of the Act. He therefore dismissed the appellant's application for judicial review on the basis that no jurisdictional error had been demonstrated.

GROUNDS OF THE PRESENT APPEAL 13 The Notice of Appeal filed in this Court on 8 April 2008, set out the following grounds of appeal: '1. The decision involved an important exercise of the power conferred [by the] Migration Act [and] Regulations. 2. The respondent did not carefully consider the information which is in favour of the applicant. 3. There was no evidence or the other materials to justify the making of the decision.'

THE CONTENTIONS 14 At the hearing of the appeal before me the appellant appeared in person and was unrepresented. He was assisted by an interpreter. Ms Kantaria appeared for the first respondent. 15 The appellant submitted that the Tribunal's judgment was not a proper one and that the Tribunal had not read some of his materials. He submitted that the Federal Magistrate had not seen, read or considered his materials and he did not have a copy of the tape of the hearing before the Tribunal. 16 Ms Kantaria relied upon the written submissions as filed. In response to the appellant's submissions that the Federal Magistrate had not read or considered the appellant's materials, she pointed out that in his reasons the Federal Magistrate had carefully recorded and then considered all of the written and oral materials the appellant had submitted to him.

CONSIDERATION 17 In my view this appeal has no merit. First, none of the grounds of appeal before this Court expressly identifies any error on the part of the Federal Magistrate; instead, so far as they are intelligible, they are directed to the Tribunal's decision. As the Full Court has emphasised on more than one occasion in the past, an appeal to this Court is directed to error on the part of the Federal Magistrate and should not be taken as an occasion to review the decision of the Tribunal: see, for example, Sathiyanathan v Minister for Immigration & Multicultural Affairs [2000] FCA 210 at [10]. 18 Secondly, the grounds of appeal themselves are in the most general of terms and they are not supported by any particulars. Therefore, even if it were open to me to review the decision of the Tribunal, it is not possible to identify from the grounds of appeal exactly how the appellant says the Tribunal fell into error. 19 Thirdly, even if it were open to me to review the decision of the Tribunal, it is apparent from the terms of the three grounds of appeal, in so far as they are relevant and intelligible, that the appellant is seeking a merits review and that is plainly not permissible in an appeal of this kind. The first ground appears to be a statement about the significance of the decision which is of no relevance whatsoever. The second and third grounds speak very generally about the respondent (I assume this is a reference to the Tribunal) not carefully considering 'the information which is in favour of the applicant', or there being 'no evidence ….. to justify the decision' (again I assume this is a reference to the decision of the Tribunal). In my view these terms are redolent of a merits review. 20 Finally, as to the appellant's oral submissions before me that the Federal Magistrate did not read or consider the materials he put before him, I agree with Ms Kantaria's submission that it is apparent from his Honour's reasons that he conducted a careful review of each of the three categories of material the appellant put before him and ultimately concluded, correctly in my respectful opinion, that the appellant had failed to show any jurisdictional error on the part of the Tribunal.

ORDERS 21 I therefore order that this appeal be dismissed. 22 I will hear the parties on the question of costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate: Dated: 6 June 2008 Counsel for the Appellant: In person

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