FEDERAL COURT OF AUSTRALIA

SZFCN v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1433

MIGRATION – no issue of principle

SZFCN AND SZFCO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1055 of 2005

CONTI J

15 SEPTEMBER 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellants to pay the respondents’ costs of the appeal.

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

Background

1                     This is an appeal from the judgment of Barnes FM dated 14 June 2005 whereby her Honour dismissed the appellants’ application for review of the decision of the Refugee Review Tribunal made on 26 October 2004, which affirmed an earlier decision of a Ministerial delegate not to grant protection visas to the appellants.

2                     The facts and background circumstances are conveniently set out at [2] to [3] of her Honour’s reasons for judgment:

‘2.        The [appellants] are husband and wife and citizens of Mongolia.  They arrived in Australia on 21 February 2004 and sought protection visas.  Only the husband made specific claims for asylum.  No specific Convention claims were made by or on behalf of the [appellant] wife.  The [appellant] husband provided a statement in support of his protection visa application in which he claimed to fear persecution in Mongolia for reason of his political opinion.

3.         He claimed to have been an active member of an organisation known as the ‘New Leaders Club’ since 1998 and to have agitated against the Mongolian People's Revolutionary Party (the MPRP).  He claimed that he had been warned by an officer of the National Security Service that he might face serious consequences such as prosecution for drug dealing or child molestation if he continued his political activities.’

3                     Neither of the appellants appeared at today’s hearing of their appeal.  Tendered by the respondents were two letters addressed to the appellants’ address for service, the first dated 25 August 2005 and the second bearing yesterday’s date (and a stamp indicating that it was sent by courier), each of which referred to the need for the appellants to attend today’s hearing.  Those letters detailed the time, date and location of the hearing, and the contact phone number of the Minister’s solicitor.  Upon the application of the Minister made under O 52 r  38A of the Federal Court Rules, I proceeded with the hearing of the appeal in the appellants’ absence. 

The Tribunal and Federal Magistrate’s decisions and the appellants’ appeal therefrom

4                     The Tribunal did not accept any of the appellant husband’s claims (henceforth ‘the appellant’, unless otherwise provided) that he had a well-founded fear of persecution upon his return to Mongolia, and rejected the same on essentially two alternate bases.  The Tribunal’s primary finding was that the appellant was not a witness of credit in relation to his claim that he had suffered persecution in the past for his political beliefs and that he had a well-founded fear that he would continue to do so were he to return to Mongolia.  The Tribunal was not satisfied that the ‘New Leaders Club’ postulated by the appellant to the Tribunal existed at all, or that the appellant had been engaged in pro-democracy movements.  In respect of the former finding, the Tribunal could not locate any evidence suggestive of the alleged party’s existence.  The latter conclusion was derived from the vagueness of the appellant’s claims, and from inconsistencies between his oral submissions made during the hearing and his earlier written claims.  Those written claims were those filed with the appellant’s protection visa application and which were re-submitted to the Tribunal with his application for review. 

5                     The Federal Magistrate found that credibility is a matter for the Tribunal par excellence, citing Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407.  Moreover, her Honour concluded that the Tribunal findings were open on the material before it and for the reasons that it gave, and that no error was demonstrated in its approach.  Her Honour was clearly not in error to so find.  So long as the credibility findings made by the Tribunal were reasonably open to it on the evidence appropriately before it, no error, and certainly no jurisdictional error, can be found to exist: see generally Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-59 (O’Connor, Branson and Marshall JJ). 

6                     In any event, the Tribunal made an alternative finding on the basis of independent country information that the Mongolian People’s Revolutionary Party (the ‘MPRP’), against whom the appellant claimed to have agitated, had recently moved from being a staunchly Communist to more of a social democratic party, and furthermore that since at least 1990 the MPRP’s monopoly on power had ended, and that since 2004 the MPRP had been in a coalition government with the popular Democratic Coalition, headed by a former dissident involved in the campaign to end the MPRP’s one-party rule.  On the assumption that the appellant was a pro-democracy political activist (of which the Tribunal was not satisfied), the Tribunal was satisfied by the aforementioned independent country information that political activists in Mongolia were not persecuted by reason of their political opinion or their activities.  The Federal Magistrate found that the obligations contained in subsection 424A(1) of the Migration Act 1958 (Cth) did not apply to the country information relied on by the Tribunal to make this finding, because such material fell within the subsection 424A(3)(a) exception of material not specifically about the appellant, thereby citing Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264.  Again, there was no error in her Honour so finding.  Moreover, as the Minister correctly submitted, even had the Tribunal found the appellant’s claims to have been ‘plausible and coherent’, it is unlikely that a state is expected to grant refugee status to persons when their account of conditions in their place of origin did not accord with the State’s understanding of the same:  Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 428 (McHugh J). 

7                     In their amended notice of appeal filed 18 August 2005, the appellants pleaded the following grounds of appeal from her Honour’s judgment (read literally):

‘2.        The Single Judge of the Federal Magistrate Court in her Honors Judgment delivered on the 14 June 2005 failed to find error of law, Jurisdictional error, Procedural fairness and relief under Section 39B of the Judiciary Act 1903.

3.         The Honourable Judge erred in considering the real state of affairs of the applicant, the applicant feared harm.  And also the present ruling government fail to protect civilians life, which is a worldwide concern today.  Honourable Trial judge did not take it into consideration.

4.         S474 of the Migration Act is ineffective as per the recent two decision of the High Court of Australia.   Honourable trial judge did not consider this in favour of me.

5.         The Tribunal erred in law in refusing me to give me protection visa that I was a member of POLITICAL GROUP only because the correspondence from Mongolia is in consistence.  I submitted sufficient documents to prove those matters but the tribunal neglected those evidences.

6.         His Honour the Federal Magistrate also failed to find that the tribunal erred in law in determining that I was a persecuted although it has sufficient evidences in front it to examine.

7.         The tribunal did not disclose the adverse country information, which were used against me.  I was not given any adverse information to contest with and to give comment.  Thus the tribunal erred in law and it is a breach of Migration Act 1958.

8.         The federal Magistrates also failed to find this error in his Honor’s judgment.

9.         I refer very recent High Court decision SAAP v MIMIA [2005] HCA 24(18 May 2005).

10.       I also refer Federal court order made by Justice Madgwick.  SZFKL v MIMIA [2005] FCA 931.

11.       I will provide more details in my written submission.’

8                     On 29 August 2005, the appellants filed a document which purported to be written submissions and relevant authorities.  Attached to that document were pages containing the orders and the headnotes of three authorities: Plaintiff S157/2002 v Commonwealth [2003] FCA 2; SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 and SZFKL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 931.  Those submissions were literally in the following terms:

‘I refer High Court decision, PLAINTFF S157/2002 v COMMONWEALTH …MARK-A.

Please redirect my application to the RRT for further consideration.  And the Federal court have the jurisdiction to consider my case because grounds of relief is denial of natural justice and the tribunal decision is made in bad faith.

I refer High Court test case, Plaintiff S157/2002 which was decided on 4 February 2003 (and reported heavily in the press and on TV), the High Court stated unanimously that where there has been jurisdictional error, the courts could order that the case be redetermined according to law.  This means that the Commonwealth’s attempts, to prevent people like you from seeking review in the courts, have effectively failed.

I also refer recent High Court decision SAAP v MIMIA…The decision is relevant to my application.  MARK B.

In this decision High Court agree that its power to conduct the review is enshrined in the Constitution of Australia.  It means that applicant entitled to apply to the federal court for judicial review of your decision, notwithstanding the terms of the privative clause contained in s 474 of the Migration Act 1958.  However the High Court also found that s 474 and s 486A are also constitutionally valid.

I refer Federal court decision SZFKL v MIMIA…The Refugee Review Tribunal be joined as a  party to the proceedings.  MARK C.

I have no barrister.  I have request to the justice please give me a free barrister.’

9                     Unfortunately since the appellants did not attend the appeal hearing I was not able to receive oral submissions from them elaborating on their grounds of appeal and written submissions.  Given the background and circumstances generally of the appellants, it is apparent that those generalised and otherwise misdirected, if not also virtually meaningless, grounds of appeal were provided to the appellants without any attempt to gear the same to the appellants’ circumstances.  The irresponsibility and mischief practised by such persons, doubtless on a remunerated basis, serves no purpose to the refugee litigant other than normally to delay his or her departure from Australia, and in the meantime to occasion unnecessary cost to the Australian taxpayer. 

10                  I observe that according to the Tribunal’s reasons for decision, which is the only evidence I have of what occurred during the Tribunal hearing, the Tribunal member put all evidence concerning the MPRP to the appellants for comment.

11                  Similarly Barnes FM considered in detail whether the recent High Court decision in SAAP had any application to the current proceedings.  Counsel for the Minister had given detailed submissions to her Honour as to why SAAP had no application to the proceedings below.  Her Honour held that contrary to the circumstances of SAAP, the provisions of s 424A(1) of the Migration Act 1958 had not been shown to apply or to have been breached in the present case.  Her Honour’s first reason for reaching that conclusion I have described already: the Minister’s obligations under s 424A(1) did not extend to generalised independent country information not specifically related to the appellant (s 424A(3)(a)).  Moreover, while the Tribunal did rely on inconsistencies between the appellant husband’s written claims in the statement accompanying his protection visa application and his oral evidence to the Tribunal, in this instance the written statement was re-submitted to the Tribunal with the review application and adopted by the appellant in the Tribunal hearing.  Both the written claims and the oral evidence of the appellants were provided by them for the purposes of the review proceedings before the Tribunal and therefore, if section 424A(1) is applicable, the information so provided fell within the exception in section 424A(3)(b), being information that the appellants gave to the Tribunal for the purpose of the application for review, her Honour referring thereby to Minister for Immigration & Multicultural Affairs v Al-Shamry (2001) 110 FCR 27.  In any event, her Honour was satisfied that had she been incorrect in finding that s 424A(1) did not apply in the subject circumstances, the Tribunal had made an alternative finding based on the independent country information as to the changed nature of the MPRP, which I have explained above. 

12                  Her Honour was therefore correct in finding that s 424A(1) did not have any application to the circumstances of the appellants for the reasons that I have summarised above.  Furthermore, her Honour’s conclusion that the re-submission of prior written claims brought them within the exception to s 424A(1) contained in s 424A(3)(b) (being information that the applicant gave for the purpose of the application) is correct, and consistent with the decision of Lindgren J of this Court in SZBNK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 998 at [23]. 

13                  None of the authorities referred to or extracted by the appellants and referred to in their notice of appeal assist their purported grounds of appeal.  The operation of Plaintiff S157/2002 v Commonwealth is now well settled.  SAAP is distinguishable on its facts from those the subject of the present appeal.  SZFKL v MIMIA [2005] FCA 931 is similarly unhelpful to the appellants, Madgwick J there holding at [7]-[8] that an appellant’s confirmation to the Tribunal member, during the course of the Tribunal hearing, that he was satisfied of the accuracy of the information in his visa application and the supporting statement, brought that information within the scope of s 424A(3)(b). 

Conclusion

14                  For these reasons, I dismiss the appeal and order the appellants to pay the respondents’ costs of the appeal.

Associate:

Dated:              11 October 2005