SZLNE v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court given on 9 April 2008 dismissing an application by the appellant for an order that the respondents show cause why a remedy should not be granted in the exercise of that court's jurisdiction under s 476 of the Migration Act 1958 (Cth) ("the Act") in relation to a decision by the Refugee Review Tribunal ("the Tribunal"), signed on 23 August 2007 and handed down on 13 September 2007. In that decision, the Tribunal affirmed an earlier decision of a delegate of the respondent Minister not to grant a Protection (Class XA) Visa to the appellant pursuant to the Act. The second respondent, the Tribunal, has filed a submitting appearance. 2 The appellant is a citizen of China who arrived in Australia on 27 April 2007. On 2 May 2007, he lodged an application for a protection visa, claiming to fear persecution because of his involvement in the Falun Gong movement in China. In its written decision, the Tribunal said that it was satisfied that the appellant was not a Falun Gong practitioner in China and that views associated with the practice of Falun Gong were not imputed to him. It concluded that there was not a real chance that the appellant would be subject to serious harm amounting to persecution for a Convention reason because of his practice of Falun Gong if he were obliged to return to China either then or in the reasonably foreseeable future. The Tribunal also rejected the appellant's claims to have been arrested and detained on account of his actual or imputed association with Falun Gong. 3 The appellant's grounds of appeal bore only the most general relationship with the submissions which he made in court today and with the case which he apparently conducted before the Federal Magistrate. I propose to deal with his case on appeal in accordance with the structure of the oral submissions which he made, noting that he was quite articulate and quite firm in the nature of the complaints which he made both against the Tribunal and, to a lesser extent, against the Magistrate. 4 The appellant first submitted that the Tribunal had erred in concluding that his ability to depart from China on a regularly obtained passport, and pursuant to regularly obtained departure permits, was inconsistent with his proposition to have been either a wanted man or a prohibited person in China by reason of his practice of Falun Gong. In this respect the Tribunal said: Moreover, the Tribunal accepts that if the applicant's computer was confiscated in January 2007, then any adverse material on it was in the hands of the police and/or PSB for some almost 4 months prior to his departure for Australia. However, in this intervening period, the Applicant does not claim that he has been questioned about it, detained, or arrested. Indeed, the Tribunal has already accepted that the applicant was able to depart China for Australia using his own passport without claiming he had any difficulties whatsoever. The Tribunal is also satisfied that if there was any material on the computer which was judged by the police and/or PSB to be anti-government, then he would not have been allowed to leave China - or at the very least questioned about it when he attempted to do so. In his letter of 20 August 2007 the applicant asks rhetorically whether he should have sent an application for a protection visa from prison in China, and claims the reason he could leave was because he got his passport in 2003 due to corrupt officials and having spent RMB 100,000 for a bond and agent fees, and he came to Australia for freedom and protection leaving all his relatives behind. However, and as again was put to the Applicant in its letter of 7 August 2007, the Tribunal is satisfied if the police came to his work unit in January 2007; he was then immediately detained for four days for a Convention related reason; his computer was then confiscated and anti-government information obtained from the Internet and written by the applicant was found on it; then he would not have been allowed to leave China nearly 4 months later on 26 April 2007. Accordingly, and not withstanding the claims made by the applicant, the Tribunal is satisfied that he is of no interest to the PRC authorities because he was involved in Falun Gong, because of his anti-government political views (actual or imputed), or because he had any anti-government material or unauthorised material on his computer or for any other Convention related reason, and the Tribunal does not accept these claims. Accordingly, and given all the above, the Tribunal is satisfied that there is not a real chance that he would be subject to serious harm amounting to persecution for a Convention related reason on this basis if he returns to China, either now or in the reasonably foreseeable future. 5 In her Honour's reasons for judgment, the Federal Magistrate said the following about this point: In oral submissions to the Court, the Applicant referred, in particular, to information in his response about the reason he was able to obtain a valid passport and leave China without difficulty as being information not referred to by the Tribunal. A fair reading of the Tribunal's decision makes clear that the Tribunal did consider the Applicant's explanation. However, the Tribunal was not satisfied on the Applicant's evidence alone and preferred the country information before it that suggested that, if indeed the Applicant had been of interest to the authorities by reason of being a Falun Gong practitioner in China, he would not have been allowed to leave China. The independent country information to which the Tribunal had regard was given to the Applicant in writing by the Tribunal in its s.424A letter. As appears from the tenor of her Honour's observations, the applicant's point before the Federal Magistrate appears to have been that the Tribunal failed to consider his response to its reasoning about the unlikelihood of him being able to leave China regularly if the authorities had been interested in him as a Falun Gong practitioner or as an anti-government agitator. 6 On appeal, the appellant expressed this point rather differently. He accepted that the Tribunal had considered his response, to which I would add that a reading of the Tribunal's reasons shows that her Honour's conclusions, set out above, are amply justified. Rather, the applicant submitted here that the way the Tribunal dealt with this point was simply illogical, by which I understood him to say that unless he found some way of getting to Australia, he could not possibly have made application for a protection visa. However, the question is not whether he ought to have applied for a protection visa without first coming to Australia; the question is whether his ability to leave China in a regular way and with the full knowledge of the authorities was consistent with his factual propositions put to the Tribunal that he was a person of interest to the police and/or the PSB, because of his practice of Falun Gong or his possession of anti-government material. The resolution of this question was entirely one for the Tribunal and was wholly within its jurisdiction. I do not suggest that illogicality would provide a proper basis for a jurisdictional objection to a decision of this kind, but I would hold that the way the Tribunal used this particular mix of facts and circumstances was not only logical but obvious. 7 The second point made by the appellant this afternoon is that the Tribunal conducted the hearing before it in such a way as to prevent the appellant from giving a fair explanation of the facts and arguments which constituted his then case, and that it did so by bombarding him, in effect, with a series of questions which compelled either a "yes" or "no" answer only, or, as he put it in the relevant passage of his grounds of appeal in the Notice of Appeal filed on 22 April 2008, he "was questioned like a criminal" and "often stopped" by the Tribunal. 8 The appellant appears to have developed a similar point in his case in the Federal Magistrates Court, as to which her Honour said: In relation to the allegation of bias, the Applicant stated that the Tribunal only asked him questions to which he could answer yes or no and that he was not allowed to speak freely. No transcript of the Tribunal hearing or other evidence was provided by the Applicant in support of these complaints, despite having been directed to file and serve any such evidence by 7 January 2008. A fair reading of the Tribunal's decision record makes clear that the Tribunal asked many open-ended questions and noted the Applicant's often expansive responses. Further, before it closed the hearing, the Tribunal noted that it asked the Applicant, if there were "any other claims or matters he wished to put before the tribunal". The Tribunal noted that the Applicant "thanked the Tribunal for listening to his claims". The Tribunal noted that when it asked the Applicant "whether he had any new claims" the Applicant referred only to claims that had previously been mentioned. 9 It is clear in the circumstances that the factual basis for this ground of appeal simply does not exist. The appellant sought to extricate himself from that difficulty by proposing to me that he had desired to place the record of the Tribunal hearing before the Federal Magistrate, but had not had possession of the tape of the hearing, and had not had the facilities or the resources to have that tape transcribed. Had the appellant considered himself to be at a disadvantage in these respects, it might have been a matter which he could have raised with the Federal Magistrate. It is, however, not something that is open for him to raise for the first time on appeal. 10 The only evidence which I have before me is the record of the decision of the Tribunal, and as her Honour below pointed out, although not constituting a transcript, that record contains what I consider to be uncommonly detailed particulars of the course of the hearing at that level. Nothing in that record, and nothing otherwise before the Federal Magistrate, sustains the proposition that the appellant was denied a fair hearing in the respects of which he now complains. 11 The third point which the appellant now raises is that the Tribunal misunderstood the nature of Falun Gong insofar as it made a finding that Falun Gong was not an organisation as such, but was simply a set of principles and practices to which people adhered and in which they engaged. This is purely a question of fact, the resolution of which was entirely within the jurisdiction of the tribunal. Neither the Federal Magistrate nor this court has the power to decide such questions of fact, much less to entertain a challenge to factual findings of that kind that have been made by the Tribunal. 12 The final point raised this afternoon by the appellant concerned a letter which was provided to him as an attachment to the Tribunal's s 424A letter dated 7 August 2007. In the s 424A letter, the Tribunal said: You claimed at the hearing that the PSB and your travel agent had been looking for you and your wife had been suspended from her job in a hospital. However, the Tribunal has before it a letter from your travel agent dated 11 May 2007, which indicates they were concerned because you were apparently illegally detained in Australia…: Subject to any comments you may make, and as was put to you by the Tribunal, and the reason for why there was concerned about your whereabouts could well be because you failed to return from your scheduled visit to Australia and they thought you were illegally detained here, and not because you are of any Convention related interest to the authorities in China. The letter of 11 May 2007 from the travel agent opens with the following paragraph: We are so sorry to bother you that one person of our group is detained in Australia. This group was permitted to remain in Australia from 26, APR, 2007 to 07, MAY, 2007. When this group having breakfast in Sydney cabaret on 3 May, 2007, the tour leader … can't find the person [who was and is the appellant]. Through seeking in many ways and having no result, we confirm that he was belonging to illegal detained, and had reported the case to the security authorities in time. The remainder of the letter makes it clear that the travel agent was concerned as to the appellant's welfare, presuming, as it did, that he had been abducted or similar, because of his unexplained disappearance from an activity of the tour group of which he apparently was a member. In its reasons for decision, the Tribunal pointed out that the appellant had not made any comment in response to the relevant section of its s 424A letter. 13 In his submissions before me today, the appellant said that he did not know why he was given a copy of the letter, that is, the letter from the travel agent. He said he did not have the funds to translate that letter into English. Whether or not that last proposition is correct, I cannot perceive how it might be thought that the Tribunal fell into jurisdictional error merely by alerting the appellant, as required by s 424A, to the existence of a document which had the potential to cast doubt on at least some of the propositions which he had advanced and doing so in the English language, which is, after all, the language which the Tribunal is obliged to use. I do not think there is any substance in this point, as developed by the appellant. 14 I have read the reasons of the Federal Magistrate and they appear to me to have dealt with the appellant's case for judicial review without error. Nothing which has been put to me this afternoon by the appellant, or which otherwise appears from the materials to which he has referred, has persuaded me that there was any error in the way in which her Honour disposed of his application. In the circumstances, I propose to dismiss the appeal. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.