SZLFP v Minister for Immigration and Citizenship

THE TRIBUNAL'S DECISION 5 In her decision, Federal Magistrate Barnes set out a summary of the Tribunal's reasons for rejecting the appellant's claims and affirming the delegate's decision (at [6] to [13] of [2008] FMCA 864). That summary is further summarised below: · The contents of the 'record of detention' document produced by the appellant "did not match his account of events". Specifically, he had claimed that he had been arrested and refused release until he gave the authorities certain names. However the 'record of detention' document was dated 1 October 2006 and it stated that he was to be detained until 20 October 2006. From this the Tribunal concluded that the appellant's detention period must have been known on the day of his alleged arrest. Since this was inconsistent with the appellant's claims (above), the Tribunal concluded the 'record of detention' document was fabricated to support his story that he was arrested; · The Tribunal did not accept the appellant's claims that he had been arrested in October 1998 when he went to Beijing to protest against what he said was the banning of Falun Gong, or that he was arrested at a similar demonstration in early 1999, because the independent country information available to the Tribunal indicated that Falun Gong was first banned by the Chinese authorities in July 1999, following a major demonstration in Beijing in April 1999. The Tribunal also noted that at one stage during the hearing the appellant stated that the demonstration which led to the banning of Falun Gong took place in April 2001; · Further, on this aspect, the Tribunal found that if the appellant were a genuine Falun Gong practitioner in the late 1990s as he claimed, he should have been fully aware of the circumstances and timing of the banning of Falun Gong by the Chinese authorities. In this regard, the Tribunal rejected the appellant's explanation that he had become forgetful because of his alleged injuries, stating that these particular events were so significant for Falun Gong practitioners that it did not accept that a genuine Falun Gong practitioner might forget them. · The Tribunal also found that if the appellant were a genuine Falun Gong practitioner who sought to leave China to escape persecution, it would have expected him to have continued his practice of Falun Gong in Australia, whereas the evidence he gave to the Tribunal was that he had not. · Finally, while the Tribunal was satisfied that the appellant had exhibited some knowledge of Falun Gong, it concluded that his knowledge of the "practicalities of the Falun Gong exercises was deficient in a number of ways" and the appellant's knowledge of Falun Gong principles was "quite superficial". 6 For these reasons, the Tribunal found that the appellant was not a genuine Falun Gong practitioner and if he were to return to China in the reasonably foreseeable future, the appellant would not seek to practice Falun Gong and hence would not come to the adverse attention of the Chinese authorities. Further, as the appellant had made no claims other than those based on his alleged involvement with Falun Gong, the Tribunal found that he did not have a well-founded fear of persecution for a Convention-related reason in China.

THE FEDERAL MAGISTRATE'S DECISION 7 The appellant filed an amended application for judicial review in the Federal Magistrates Court on 31 October 2007 which contained the following grounds: 1. The Tribunal had bias against me and made a decision on my application based [on] the officer's assumption. 2. The Tribunal failed to notify me in writing [of] the reason or part of the reasons for affirming the decision. The Tribunal therefore failed to consider my application for a protection visa in accordance with s424A of the Migration Act 1958. I was not given an opportunity to comment upon the reason. 1. 1. The Tribunal failed to carry out its statutory duty. [original numbering] 8 The appellant did not file any written submissions, or a transcript of the hearing before the Tribunal. The appellant attended the hearing before Federal Magistrate Barnes on 19 June 2008 and made oral submissions to the effect that the Tribunal did not consider his case according to the Migration Act 1958 (Cth) ('the Act'), and it failed to properly understand his reasons, or to properly assess the persecution he may face in China. 9 The Federal Magistrate, having considered the Tribunal's decision in light of the claims made by the appellant, held that the appellant "did not take issue with any particular aspect of the conduct of the Tribunal hearing. The evidence before the Court does not establish his claim of bias, whether actual or apprehended, or that the Tribunal conducted its review with an absence of good faith". Further, her Honour held that any contention that the Tribunal had operated on 'assumption' had not been made out because the Tribunal's decision was based on a proper consideration of the appellant's claims and his evidence and its findings as to various deficiencies and inconsistencies in that evidence were open to the Tribunal on the material before it. 10 In relation to the appellant's claim that the Tribunal had breached s 424A of the Act, the Federal Magistrate found that "[i]nsofar as the Tribunal's findings were based on oral evidence that the [appellant] gave at the hearing and the documents he read to the Tribunal, such material is within the exception in s.424A(3)(b) of the Act". In addition, her Honour found that the general country information relied on in the Tribunal's decision fell within the same exception. The Federal Magistrate observed that there was no obligation upon the Tribunal under s424A to put its preliminary reasons, or its views about perceived inconsistencies in his evidence, to the appellant, referring to SZBEL v Minister for Immigration & Multicultural Affairs & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63. Her Honour therefore concluded that s424A of the Act had not been breached by the Tribunal. 11 The Federal Magistrate rejected each of the appellant's oral contentions as baseless and concluded that as no jurisdictional error has been established, the appellant's application for judicial review must be dismissed.

GROUNDS OF THE PRESENT APPEAL 12 The notice of appeal filed in this Court on 9 July 2008, raises grounds very similar to those raised before the Federal Magistrate, as follows: 1. The Tribunal did not believe my claims for the application for a protection visa because of the officer's bias against me. 2. The Tribunal failed to consider my application according to S424A of the Migration Act 1958. The Tribunal had not notified me the reason or part of the reasons for affirming the decision. I was not given an opportunity to comment upon the reasons. 3. The Tribunal decision was not based on evidence and materials.

THE CONTENTIONS 13 At the hearing before me on 25 August 2008, the appellant appeared in person, unrepresented, but assisted by an interpreter. Ms Sirtes appeared for the first respondent. 14 The appellant had not filed any outline of written submissions and did not seek to make any oral submissions in support of his appeal. The first respondent had earlier filed an outline of written submissions and in the absence of any oral submissions by the appellant, Ms Sirtes did not seek to make any oral submissions, but sought to rely upon her outline of written submissions. 15 In summary, the first respondent's outline of written submissions contained the following submissions: · In relation to Ground 1: An allegation of bias is a serious one that requires both proof and particularisation. There is nothing on the face of the Tribunal's decision (being the only material before the Court) to indicate that the test for bias set out in Re Refugee Review Tribunal: Ex Parte H (2001) 179 ALR 425 at [27] - [29]; [2001] HCA 28 had been met. · In relation to Ground 2: The Federal Magistrate was correct in finding that s 424A was not engaged in the circumstances of this matter because the exceptions provided for in s 424A(3) applied to each of the oral evidence of the appellant, the general country information relied on by the Tribunal and the Tribunal's reasoning process as to perceived inconsistencies in the evidence of the appellant. · In relation to Ground 3: The Tribunal's decision was largely based upon the appellant's own evidence and independent country information and this ground cannot therefore succeed. In so far as this ground may be alleging a failure by the Tribunal to investigate the appellant's claims, there is no such duty on the Tribunal: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004] HCA 32.

CONSIDERATION 16 The grounds of appeal raised by the appellant in his notice of appeal suffer from a number of obvious deficiencies. Firstly, none of them raises any alleged error on the part of the Federal Magistrate, the correction of which is the primary purpose of any appeal to this Court from a judgment of the Federal Magistrates Court. Instead, all of the grounds of appeal are directed to alleged errors on the part of the Tribunal. Secondly, even if I were to assume that the appellant intended to allege that the Federal Magistrate erred by failing to accept the alleged errors in the Tribunal's decision, none of the grounds is particularised; and without particularisation, they are largely meaningless. This is particularly so in relation to grounds two and three, where the information said to be covered by s 424A and the evidence and materials the Tribunal allegedly failed to consider (respectively), are only identified in the most general of terms. Finally, ground three was not raised before the Federal Magistrate and should not therefore be permitted to be raised for the first time before this Court. 17 In so far as grounds one and two raise the same allegations as were raised before the Federal Magistrate, namely bias on the part of the Tribunal and breaches of s 424A respectively, having closely considered the Federal Magistrate's decision, I cannot identify any error in her Honour's reasoning. Specifically, I consider her Honour was correct in rejecting the allegation of bias in ground one, on the ground that it was neither clearly alleged, nor proved: SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [43]; [2002] FCAFC 361. And, in relation to the alleged breach of s 424A of the Act, I consider her Honour was correct in finding that no such breach had occurred because the appellant's own evidence to the Tribunal, the general country information relied upon by the Tribunal and the Tribunal's reasoning process all fell within the exceptions created by s 424A(3) of the Act.

18 For these reasons, I am unable to detect any error on the part of the Federal Magistrate in her consideration of the grounds of judicial review raised before her Honour. It follows that I am unable to find any merit in the appellant's grounds of appeal before this Court that raise the same issues. This appeal must therefore be dismissed. I will hear the parties on the question of costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves .

Associate: Dated: 29 August 2008 Counsel for the Appellant: In person

Solicitor for the First Respondent: Sparke Helmore