SZMIY v Minister for Immigration and Citizenship

Federal Court of Australia|2009-02-26|Before: Reeves J

INTRODUCTION 1 This is an appeal against the judgment of Federal Magistrate Smith delivered on 1 December 2008, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal'). The Tribunal's decision was handed down on 6 May 2008 and affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

FACTUAL SUMMARY 2 The appellant is a citizen of China who arrived in Australia on 11 September 2007. On 19 October 2007, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 11 December 2007. On 11 January 2008, the appellant applied to the Tribunal for a review of that decision. 3 In her application the appellant claimed that she had been a Falun Gong practitioner, and "in November 2001 I was put into jail for three months just because I was reported to the police that I practised Falun Gong". She suffered "torment at the brainwashing class in the jail", which caused a heart disease for which she was sent to hospital. After she was released, "the policemen kept close surveillance on me. In 2003 I was fired by the employer where I worked for 22 years. I was so depressed, I could not find a job afterwards". She claimed that in Australia she had joined Falun Gong practitioners in practice sessions. 4 The appellant attended a Tribunal hearing on 20 February 2008, where she gave further evidence in support of the claims she made in her application.

THE TRIBUNAL'S DECISION 5 The Tribunal did not accept as true that the appellant was a genuine Falun Gong practitioner or that she had practised Falun Gong in either China or Australia as she claimed. It also did not accept as true most of her other claims, including her claim that she "was persecuted and/or feared persecution in China because of [her] Falun Gong practice or activities". 6 The Tribunal gave a number of reasons for not accepting the appellant as a witness of truth, including the following: 1. That the appellant was unaware of some "basic information about Falun Gong" and produced no witnesses or other evidence to corroborate her claims that she was a Falun Gong practitioner; 2. That the appellant's claims to have publicly practised Falun Gong in China prior to her arrest and detention in 2001 was inconsistent with country information that Falun Gong was banned in China from 22 July 1999 and there was a severe crackdown by the Chinese authorities on Falun Gong thereafter; 3. That the appellant's conduct in travelling to Singapore in 2007 and returning to China was inconsistent with her claimed fear of persecution in China; 4. There was a number of significant inconsistencies in the appellant's evidence in relation to her employment in China and to her travels outside of China; and 5. Her claims that she left China using her Chinese passport in September 2007, when she claimed to be under surveillance by the authorities there, was inconsistent with country information. 7 Accordingly, the Tribunal concluded that: The Tribunal is not satisfied that the applicant was persecuted for reasons of her religion, her political opinion, or her membership of a particular social group. The Tribunal is not satisfied that there is a real chance that the applicant will face serious harm for reasons of her membership of a particular social group, her religion or her political opinion if she returns to her country of nationality. And: For the above reasons the Tribunal is not satisfied, on all the evidence before it, that the applicant has a genuine subjective fear of being persecuted and does not accept that her claimed fear of persecution is well-founded within the meaning of the Convention.

THE FEDERAL MAGISTRATE'S DECISION 8 In her amended application to the Federal Magistrates Court dated 18 August 2008, the appellant alleged - without providing any particulars - that the Tribunal had breached s 424AA of the Migration Act 1958 (Cth) ('the Act'). Specifically, the appellant alleged: Where, as in this case, the Tribunal put the information to the applicant, required a response during the hearing and, only at the end of the hearing, advised the applicant that she could seek additional time to respond, the Tribunal has failed to give the applicant the opportunity required by s 424AA to consider the information before responding. 9 The Federal Magistrate found that the Tribunal did not rely on any "information" as a reason for affirming the delegate's decision and therefore s 424A(1) was not enlivened such that s 424A(2A) applied (see [2008] FMCA at [20]). His Honour relied upon: SZLXI v Minister for Immigration & Citizenship [2008] FCA 1270. The Federal Magistrate also found that the Tribunal had not breached s 425 of the Act as that section was interpreted by this Court in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 (see [2008] FMCA at [22]). 10 Finally, the Federal Magistrate noted that the Tribunal had complied with its obligations under s 91R(3) on the basis that the section did not apply to conduct in Australia which was not relied upon by an applicant as part of her refugee claims, relying in part on: SZGDJ v Minister for Immigration & Citizenship [2008] HCASL 479. In this appeal, the conduct in question was the appellant's failure to attend an interview before the Department because it allegedly clashed with a driving test. Relevantly, his Honour found (see [2008] FMCA at [24]): In my opinion, the Tribunal's reference to the applicant's failure to attend an interview with the delegate, when determining whether she had a well founded fear of persecution, did not make use of evidence about "conduct in Australia" within s.91R(3) as interpreted by the Full Court. At [22] of SZJGV, their Honours held that the section could only be applied after "primary findings of fact have been made", and they also suggested that the history of the visa application in the Department of Immigration and the Tribunal was not part of the relevant conduct which is addressed by the section. In my opinion, the Tribunal's conclusions, based on the applicant's non attendance at an interview, concerned such conduct. 11 The Federal Magistrate therefore dismissed the appellant's application for judicial review.

THE PRESENT APPEAL 12 On 19 December 2008, the appellant filed a notice of appeal which alleges that: 1. Refugee Review Tribunal did not make fair decision for my application. 2. I give my reasons why RRT is not fair at the hearing of the Federal Magistrates Court, but the Judge did not take my evidence into account. The Judge refused my application on my hearing date. It is not fair. 3. I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court. 13 At the hearing of the appeal before me on 23 February 2009, the appellant appeared in person, unrepresented, but assisted by an interpreter. Ms Nanson appeared for the first respondent. 14 The appellant applied under s 27 of the Federal Court of Australia Act 1976 (Cth) to adduce as additional evidence on this appeal, four photographs bearing the date 8 August 2007 and a letter from a friend dated 6 December 2008. 15 The photographs were dated before the appellant entered Australia in September 2007 and, therefore, before the Tribunal hearing on 20 February 2008 and well before the Federal Magistrates Court's hearing on 1 December 2008. I should record that once the significance of these dates was raised, the appellant claimed that the date on the photographs was wrong and she wished to adduce further evidence to demonstrate this. I rejected that application to adduce yet further evidence going to the accuracy of the additional evidence she wished to adduce on appeal. As to the letter from a friend, it was dated after the Federal Magistrates Court's hearing and decision on 1 December 2008 and, therefore, well after the Tribunal's hearing on 20 February 2008. 16 Because the appellant did not have any legal representation, I dealt with her application to adduce this additional evidence notwithstanding she had failed to comply with O 52 r 36, which requires such an application to be made on a notice of motion supported by an affidavit stating the grounds of the application. 17 However, I ultimately rejected the appellant's application because she had failed to give me a satisfactory explanation as to why she had not presented the evidence to the Federal Magistrates Court or, before it, to the Tribunal and also because I was not satisfied that the evidence would have resulted in a different result: see Wills v Australian Broadcasting Commission [2009] FCAFC 6 at [52]-[54] per Rares J, North and Emmett JJ agreeing. 18 Furthermore, the additional evidence was clearly directed to the merits of the appellant's application and therefore did not fall within one of the exceptional cases where evidence may be admitted in judicial review proceedings: see MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912 at [10]-[11] per Gordon J. 19 On the substantive appeal, the appellant did not file an outline of written submissions. Apart from her desire to adduce additional evidence before me (as above), her oral submissions were all to the effect that she disagreed with the Tribunal's findings that she was not a genuine Falun Gong practitioner and that she could not return to China for fear of persecution. 20 The first respondent did file an outline of written submissions. In summary, the first respondent submitted: 1. None of the grounds of appeal was raised before the Federal Magistrates Court. 2. Assuming the first ground of appeal alleged a failure to provide procedural fairness, no particulars had been given as to what it relates to. 3. In any event, no failure to provide procedural fairness as defined in s 422B of the Act had been demonstrated, much less any jurisdictional error in this respect. 4. Assuming that the second and third grounds of appeal complain that the Federal Magistrates Court and, before it, the Tribunal, was not fair because it did not consider the appellant's evidence "such as photo and witness letter into account", as stated in the appellant's affidavit she filed in support of this appeal, there is no indication in either the Tribunal's decision, or the decision of the Federal Magistrate, that the photos and witness letter were provided to either the Tribunal or the Federal Magistrate.

CONSIDERATION 21 There is a number of reasons why I consider this appeal must be dismissed. I will set them out, in no particular order, below: 1. The first ground of appeal complains the Tribunal did not make a fair decision. It is a common place proposition that an appeal to this Court from a decision of the Federal Magistrates Court is directed to correcting error on the part of the Federal Magistrates Court, not the Tribunal. 2. All the grounds of appeal are in very general terms and none of them is particularised. More importantly, none of them identifies any jurisdictional error made by the Tribunal that the Federal Magistrate should have detected. 3. Assuming the first respondent has correctly assessed that the first ground of appeal alleges a breach of s 422B of the Act and the second and third grounds of appeal allege a failure of the Federal Magistrates Court and the Tribunal to consider evidence the appellant put before them, neither of these grounds was raised before the Federal Magistrates Court. Furthermore, no good reason has been given as to why the appellant should not be allowed to raise them before this Court for the first time on this appeal. 4. Putting aside the lack of particulars and the question whether the appellant should be allowed to raise these grounds of appeal for the first time on this appeal, assuming the first respondent is correct in his assessment on what each of the grounds of appeal relates to, I consider they would fail on the merits because: i) the first respondent is correct in the submission that there is no indication that the Tribunal failed to comply with s 422B at all, let alone in a way that gave rise to jurisdictional error on its part. ii) the first respondent is also correct in the submission that there is not indication that the evidence identified by the appellant was put to the Tribunal or the Federal Magistrates Court. In fact, if it is the same evidence as the appellant sought leave to put before this Court, it is self-evident that at least the letter dated 6 December 2008, could not have been put before either the Federal Magistrates Court or the Tribunal. 22 Finally, since the appellant is not legally represented and notwithstanding that I consider she has failed on the grounds she has raised in this appeal (see above), I have independently reviewed the decision of the Federal Magistrate to determine whether there is any error apparent in his Honour's reasoning. Having done so, I am unable to detect any error and I therefore consider the conclusions reached by the Federal Magistrate were correct.

CONCLUSION 23 For these reasons, this appeal will be dismissed. I will hear the parties on the question of costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate: Dated: 26 February 2009 Appellant: In person

Solicitor for the Respondents: Australian Government Solicitor

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