FEDERAL COURT OF AUSTRALIA

SZEBX v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1197

SZEBX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1957 of 2004

ALLSOP J

9 SEPTEMBER 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondents costs.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal against orders made by a Federal Magistrate dismissing an application for review by the appellant in respect of a decision of the Refugee Review Tribunal (the “Tribunal”) which affirmed the decision of a delegate of the respondent not to grant a protection visa.

2                     The matter was heard by me, in the appellate jurisdiction of the Court, sitting as a single Judge, pursuant to a direction of the Chief Justice under s 25(1A) of the Federal Court of Australia Act 1976 (Cth).

3                     The appellant is a citizen of the People’s Republic of China. He claims to fear persecution for reasons of his political opinion. He claims that he was, as a small business owner along with other small business owners, coerced to pay a donation to the local government to fund some building works in his local province. While he had made the payments in the past he was unable at the point in time in question to do so due to the effect of the SARS epidemic on his business.  He sought, with other local small businessmen, a waiver from the donation. This was refused. Most of the other businessmen chose to pay the donation but the appellant and three others wrote to the authorities appealing its decision, which was successful. This success was the impetus for the four applying to establish a local chamber of commerce, which was refused. The four continued to push for the chamber, this time through the distribution of propaganda materials, petitions and the use of contacts. This led to the appellant and his colleagues being interrogated and detained for anti-government activities by the Public Security Bureau (PBS). Whilst detained the appellant claims he was forced to sign a confession. The appellant claims that he was forced to close his business and was regarded as a troublemaker and political dissident, that had to report regularly to the PBS and that he had to be prepared for frequent investigations by the Bureau.

4                     The Tribunal was not satisfied that the appellant was being truthful in his claims and found that he was not a credible witness.  It found that his responses at the oral hearing were often vague and inconsistent with his written claims and those in his protection visa. Among these inconsistencies was that during the hearing the appellant said he came to Australia on the basis that he was a refugee but did not know until he was in Australia that he could apply for protection. Further, the appellant was unable to describe other than vaguely the content of the propaganda material that he claimed he distributed.  The Tribunal was not satisfied of the veracity of his claims about his dealings with the PBS.  Further, it was not satisfied that he was a wanted political dissident given that country information indicated that exit checks in China were thorough and no wanted political dissident would be able to leave the country without being apprehended. The Tribunal found it to be implausible that his wife had been forcibly sterilised as a result of her husband’s claimed activities which the Tribunal had earlier considered and rejected and further, that the appellant’s wife would not have made international phone calls of sucha sensitive nature and endanger her own and her children’s lives even if the calls were made from a friend’s phone.

5                     Before the Federal Magistrate the appellant relied on an amended application which claimed the following grounds:

There was an error of law in the Tribunal’s decision constituting a jurisdictional error

Particulars

-         The Tribunal did not comply with its obligations under s 424 of the Migration Act 1958 (“the Act”).  The Tribunal never ever intended to seek any additional information.

-         The Tribunal did not comply with its obligations under s 424A of the Act.  The Tribunal never give me the information, such as his opinions regarding to my creditability, which has been used later on in its decision actually as the sole reason, for affirming the decision that is under review; and

-         The Tribunal failed to ensure, as far as is reasonably practicable, that I have fully understood why it is relevant to the review; and

-         The Tribunal has definitely never invited me to comment on it before or during or after the hearing arranged by the Tribunal; and

-         The Tribunal has never ever given the information and invitation for comment by one of the methods specified in section 441A of the Act.

There was procedural error in the Tribunal’s decision constituting an absence of natural justice.

Particulars

-         The Tribunal failed to carefully consider all of my claims, fairly and independently.  The Tribunal is of unfair bias while considering my claims.  Particularly, the Tribunal has, inevitably, owing to the unfair bias, intended to mislead me during the hearing; and the Tribunal has, apparently, tried to strictly restrict my answers, during the hearing, to the area in which the Tribunal could find a reason to refuse my application.

-         It is owing to the reason mentioned in above that the Tribunal failed to provide me any fair opportunities, during the hearing, to explain my claims or to provide complete oral evidences in support of my application; and I have, during the hearing, many times been interrupted by the Tribunal.

The Tribunal failed to carefully and fairly consider the applicant’s claims based on procedures and criteria prescribed in Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (‘UNHCR Handbook’).

-         I have been guided by Paragraph 190, Part II, UNHCR Handbook that a qualified examiner should have necessary knowledge and experience, and an understanding of an applicant’s particular difficulties and needs.  Especially, an applicant for refugee status is normally in a particularly vulnerable situation.  He finds himself in an alien environment and may experience serious difficulties, technical and psychological, in submitting his case to the authorities of a foreign country, often in a language not his own.  The Tribunal failed to demonstrate its necessary knowledge and experience and such an understanding.

-         I have been guided by Paragraph 196, Part II, UNHCR Handbook, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner.  It may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application.  Also, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.  The Tribunal failed to use all the means at its disposal to produce the necessary evidence in support of the application.  Also, the Tribunal failed to demonstrate that there are good reasons to the contrary.

-         I have been guided by Paragraph 42, Part I, UNHCR Handbook, the applicant’s statements cannot, however, be considered in the abstract, and must be viewed in the context of the relevant background situation. The Tribunal failed to consider my statements in the context of the relevant background situation.  Especially, the Tribunal failed to demonstrate its sound knowledge of conditions in the applicant’s country of origin.

6                     At the hearing before the Federal Magistrate the appellant made the further claim that he had difficulty with the interpreter at the Tribunal hearing, saying that he spoke a southern dialect which he had difficulty understanding.  In respect of this new ground the Federal Magistrate found there was no reference within the Tribunal decision indicating there was any problem with interpretation raised by the appellant nor had the appellant submitted any evidence in the form of a hearing recording and transcript with affidavit supporting the claim there was a problem with the interpreter service.

7                     The Federal Magistrate held that the Tribunal’s decision was based primarily on the adverse findings of credit of the appellant. His Honour accepted the arguments and authority put in support of the respondent’s contentions.  In those contentions, the respondent identified that the amended application filed essentially raised the following grounds of appeal:

(a)    The Tribunal failed to seek additional information pursuant to s 424 of the Migration Act 1958 (Cth) (the “Act”).

(b)   The Tribunal failed to comply with s 424A of the Act in that it failed to give him its opinion as to his credibility.

(c)    The Tribunal was biased and misled him during the hearing, restricting his answers and interrupting many times.

(d)   The Tribunal failed to carefully and fairly consider his claims based on the procedures and criteria described in the UNHCR Handbook.

8                     In respect of the failure to investigate pursuant to s 424 of the Act, the respondent submitted before the Federal Magistrate that while the Tribunal has investigative powers under s 424, it was not a condition to exercise of its power that it should exercise such powers:  Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 per Gummow and Hayne JJ at [43].  Further, there was no suggestion that the appellant asked the Tribunal to investigate any particular aspect of his claim, or that, to the knowledge of the Tribunal, there was readily available factual material that was likely to be of critical importance regarding an issue for determination which had not been obtained.  Accordingly, in the circumstances of this case, there was no obligation to make any enquiry:  WADU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1252 per R D Nicholson J at [44]-[46]; Minister for Immigration & Multicultural Affairs v Applicant S (2002) 124 FCR 256 per Stone J at [74]. 

9                     The respondent further submitted before the Federal Magistrate that in respect of the second ground, where the appellant claimed that the Tribunal failed to observe s 424A of the Act and it was the Tribunal’s obligation to bring to an appellant’s attention the critical factors on which its decision is likely to turn, did not require the disclosure of the Tribunal decision-making process or disbelief of an appellant’s claim:  Abebe v Commonwealth of Australia (1999)197 CLR 510at [187], also see Muin v Refugee Review Tribunal (2002) 190 ALR 601 and Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd  (1994) 49 FCR 576 at [590]-[591].  It was submitted that s 424A of the Act could only be enlivened if the Tribunal’s reasons for rejecting the appellant’s credibility were based on particular information personal to the appellant:  s 424A(3), Minister for Immigration & Multicultural Affairs v NAMW (2004) 140 FCR 572.  It was contented that in this case the Tribunal did not believe the appellant because of his own evidence and the independent country information and, in any event, that information and the Tribunal’s doubts in general were discussed with the appellant at the hearing.

10                  In respect of the grounds of bias and bad faith, it was submitted that the absence of bona fides was to be proved other than by perusing the fact of the record:  O’Toole v Charles David Pty Ltd (1991) 171 CLR 232.  However, proof of bad faith necessitated proof of extreme circumstances:  Dan v Commissioner of Taxation [2000] FCA 752 at [34]; Daihatsu Australia v Commissioner of Taxation [2001] FCA 588 at [36] such as dishonesty:  WAFV of 2002 v Refugee Review Tribunal [2003] FCA 16; SBAP v Refugee Review Tribunal [2002] FCA 590.  It was submitted that it was a serious allegation which should not be made lightly:  Kordan Pty Ltd v Commissioner of Taxation [2000] FCA 1807.  Counsel submitted that there was no proper evidence to support an assertion that the Tribunal acted in bad faith.

11                  It was submitted that there was no evidence that the Tribunal gave a decision which was “pre-set in the back of its mind” and there was nothing on the face of the decision to indicate that the Tribunal had a mind “incapable of alteration”:  Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at [532], or that would cause a “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”:  Re Refugee Tribunal; Ex parte H (2001) 179 ALR 425 cited by Kenny J in VFAB v Minister for Immigration  [2003] FCA 872.

12                  In the final ground the appellant claimed the Tribunal failed to consider his claims carefully and fairly.  It was submitted that this ground of review effectively cavils with the Tribunal’s fact finding and thus seeks impermissible merits review.

13                  His Honour could not identify any jurisdictional error and dismissed the application.

14                  The notice of appeal before this Court reads as follows:

GROUNDS

2.    This application is made under s 39B of the Judiciary Act 1903 (and see section 475A of the Migration Act 1958).

-      The judgment of Federal Magistrates Court (“Magistrates Court”) in relation to the above-mentioned matter is absolutely incorrect.

-      The Magistrates Court’s judgment, obviously, failed to consider my claims as follows-:

-      The Tribunal failed to carefully consider all of my claims, fairly and independently. The tribunal is of unfair bias while considering my claims. Particularly, the Tribunal has, inevitably, owing to the unfair bias, intended to mislead me during the hearing; and the Tribunal has, apparently, tried to strictly restrict my answers, during the hearing, to the area in which the Tribunal could find a reason a reason to refuse my application.

-      It is owing to the reason mentioned in above that the Tribunal failed to provide me any fair opportunities, during the hearing, to explain my claims or to provide complete oral evidences in support of my application; and I have, during the hearing, many times been interrupted by the Tribunal.

-      The Tribunal’s decision might be based substantially upon the issue of “credibility” but such an issue was substantially established on its unfair bias, and its unfair hearing.

-      The Magistrates Court’s judgment failed to consider the unfair bias of the Tribunal; and

-      The Magistrate’s Court judgment has obviously failed to consider the unfair bias of the Tribunal as the jurisdictional error. As a matter of fact, the unfair bias is definitely a jurisdictional error.

15                  The appellant submitted for filing on or about 10 March 2005 a document entitled “Submissions”. It was not (for some reason) accepted for filing and was placed in the correspondence part of the file. In this document the appellant submitted that only one judge need hear the appeal. It contains no other submissions on the appeal.

16                  The appellant did not appear on the appeal.

17                  In circumstances that are set out in the transcript of 29 July 2005, I was satisfied that the appellant was aware of the hearing of the appeal.  On the application of the respondent I heard the appeal under Order 52 rule 38A(1)(d).

18                  For the reasons set forth in the helpful submissions of Ms Clegg the ground of appeal for bias is not sustainable.

19                  Subject to the issue concerning SAAP v Minister for Immigration and Multicultural and Indigenous Affairs 2005) 215 ALR 162 and Minister for Immigration and Ethnic Affairs v Al Shamry (2001) 110 FCR 27 I see no jurisdictional error in the approach of the Tribunal or error in the Magistrate.

20                  In its reasons the Tribunal made reference to material that had been provided by the applicant before the application for review to the Tribunal.   On page 11 of its reasons, the Tribunal referred to the appellant’s application for a protection visa.  This was part of the process of questioning the appellant and weighing and evaluating the reliability of his evidence to the Tribunal.  There were other examples of this evaluative process on pages 12, 13 and 15 of the reasons.

21                  I refer to my reasons in SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 which I do not repeat.

22                  There was no breach of s 424A here.  The earlier written material in the appellant’s visa application was “information” but it was not the reason or part of the reason for the decision.  The appellant’s evidence to the Tribunal was substantially rejected because of the evaluation of what he was telling the Tribunal at the hearing.  Within that hearing process the Tribunal referred to the visa application and its contents.  But that information provided only  part of the context, or framework, of the questioning.  The reason for affirming the decision under review was the rejection of the oral evidence of the appellant largely in answer to that questioning.  It cannot rightly be said that the background information for the questioning was the reason or part of the reason for that decision.

23                  The appeal should be dismissed with costs.

Associate:

Dated:              9 September