SZJVA v Minister for Immigration and Citizenship

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 05 November 2008
• Neutral Citation: [2008] FCA 1631

FEDERAL COURT OF AUSTRALIA

SZJVA v Minister for Immigration and Citizenship [2008] FCA 1631

Migration Act 1958 (Cth) ss 424A, 424A(1), 424A(3)(b), 425

Abebe v Commonwealth (1999) 197 CLR 510

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Karras v Minister for Immigration & Multicultural Affairs (1998) 56 ALD 167

Lee v Minister for Immigration and Citizenship & Multicultural & Indigenous Affairs [2005] FCA 464

Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

NAIS v Minister for Immigration & Multicultural and Indigenous Affairs [2005] HCA 77

NBKT v Minister for Immigration and Citizenship & Multicultural & Indigenous Affairs (2006) 156 FCR 419

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407

Re Refugee Review Tribunal; Ex parte H [2001] HCA 28

SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547

SBAP v Refugee Review Tribunal [2002] FCA 590

SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152

SZBYR v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 81 ALJR 1190

SZFJO v Minister for Immigration & Anor [2005] FMCA 1964

SZIAY v Minister for Immigration & Anor [2006] FMCA 1680

SZJVA v Minister for Immigration & Anor [2008] FMCA 824

VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471

VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102

SZJVA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1097 of 2008

MCKERRACHER J

5 November 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1097 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZJVA Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	MCKERRACHER J
DATE OF ORDER:	5 NOvember 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal bedismissed.

2. The appellant do pay the costs of the first respondent fixed at $3,460.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1097 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZJVA Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	MCKERRACHER J
DATE:	5 November 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1 The appellant is a Chinese citizen. He arrived in Australia on 16 June 2004. On 13 July 2004 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship (the Department). A delegate of the first respondent refused the application for a protection visa on 29 July 2004. On 28 August 2004 the appellant applied to the Tribunal for a review of that decision. The Tribunal affirmed the delegate’s decision not to grant a protection visa to the appellant on 9 December 2004. On 4 January 2005, the appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court (he was then allocated the pseudonym ‘SZFJO’). On 15 December 2005, the Federal Magistrates Court dismissed that application (SZFJO v Minister for Immigration & Anor [2005] FMCA 1964).

2 The applicant appealed to the Federal Court and on 10 May 2006 Besanko J made orders quashing the decision and remitted the matter back to the Tribunal. It is that reconsideration which has given rise to these proceedings. When the appellant sought judicial review of the second Tribunal decision in the Federal Magistrates Court he was allocated the current pseudonym of ‘SZJVA’.

3 This appeal is from a judgment of a Federal Magistrate delivered on 25 June 2008 (SZJVA v Minister for Immigration & Anor [2008] FMCA 824). By that decision her Honour dismissed the application for judicial review of the decision of the Refugee Review Tribunal (the Tribunal) handed down on 2 November 2006.

THE APPELLANT’S CLAIMS

4 The appellant claimed to have a well-founded fear of persecution for a Convention related reason within the meaning of the Convention Relating to the Status of Refugees 1951, amended by the Protocol Relating to the Status of Refugees 1967 (the Convention) due to his political opinion. He claimed that as his mother was a Falun Gong practitioner, his employment was terminated and he was unable to find another job. He claimed that he was questioned by the Public Security Bureau (PSB) and was required to monitor the activities of his mother and other practitioners. He said he was required to accompany his mother to report to the local police station once a week. He claimed that in 2003 he was detained by the local police and physically mistreated and beaten by the Police. The appellant was released but discovered that his parents had both been taken to hospital. He said that his mother had been tortured by the police and lost consciousness while his father’s leg was broken.

5 The appellant claimed that the suffering of his parents led him to start protesting against the Chinese government and he started distributing propaganda materials. He left China as his friend and others were the subject of investigations by the authorities. He feared that he would be arrested and imprisoned should he return to China.

BEFORE THE SECOND TRIBUNAL

6 The Tribunal accepted that the appellant was a citizen of China. The Tribunal, however, found the appellant was not a truthful witness. The Tribunal cited inconsistencies in the appellant’s evidence relating to when he distributed the propaganda material and how he distributed that material. The Tribunal also had regard to inconsistencies relating to the appellant’s place of residence in China. The Tribunal was not satisfied with the appellant’s explanation for these inconsistencies.

7 The Tribunal also cited problems with the appellant’s evidence relating to his alleged detention by the Chinese authorities including the fact that the appellant did not raise this claim with the Department and then added pieces to the story at each of the Tribunal hearings. The Tribunal found the appellant’s claims in relation to when and why he left China to be implausible. There were inconsistencies in the appellant’s evidence regarding his mother’s practice of Falun Gong. There were also inconsistencies in the evidence of the appellant’s witness, who was unable to recall the appellant’s mother’s name (despite having claimed to have visited her).

8 The Tribunal did not accept the appellant’s claims and therefore did not accept that the appellant had a real chance of persecution if he were to return to China.

ON REVIEW BY THE FEDERAL MAGISTRATES COURT

9 Before the Federal Magistrate the appellant claimed:

1. The Tribunal decision was affected by bias as it ignored or failed to consider claims made by the appellant. He also asserted that the Tribunal ignored relevant material or misunderstood the appellant’s claim or made a mistake in relation to an important finding of fact;

2. The Tribunal ignored additional information and claims submitted by the appellant in response to the s 424A letter;

3. The Tribunal failed to comply with s 424A(1) of the Migration Act 1958 (Cth) (the Act) as it did not provide the appellant with the genuine information used in its reasons for determining the application.

4. The Tribunal failed to comply with s 425 of the Act as it failed to arrange another hearing for the appellant where it was unable to make a decision in favour of the appellant according to additional information or material provided to it.

5. The Tribunal identified a wrong issue, relied on irrelevant material and made an erroneous finding. The application was not assessed fairly and properly.

10 The learned Federal Magistrate observed that in the absence of the transcript of the hearing it could not be inferred on the material before the Court that the Tribunal was biased or that there was a reasonable apprehension of bias. Her Honour found that the Tribunal’s credibility finding went to the entirety of the appellant’s claims and it was not necessary for the Tribunal to make specific findings in relation to every factual contention raised by the appellant.

11 In relation to the second claimed ground, her Honour was satisfied that the Tribunal did consider the appellant’s responses, but that it did not accept the appellant’s account or the reasons given for the variations in his claims.

12 On the third claimed ground the Federal Magistrate held that information provided to the original Tribunal was information provided for the purpose of the review and that pursuant to s 424A(3)(b) of the Act the Tribunal was not required to provide the appellant with this information. Her Honour also held that the Tribunal was not required to provide details of its appraisals of the appellant’s credibility as such appraisals are not information for the purposes of s 424A(1) of the Act.

13 The learned Federal Magistrate was satisfied that the Tribunal raised all of the determinative issues, particularly the Tribunal’s concerns regarding the...