FEDERAL COURT OF AUSTRALIA

SZGQE v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 304

Migration Act 1958 (Cth) s 424A

Migration Legislation Amendment Act (No. 1) 1998 (Cth)

SZGQE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

NSD 2282 OF 2005

EDMONDS J

7 APRIL 2006

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the costs of the first respondent.

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

Edmonds J:

1                     This is an appeal from the Federal Magistrates Court (Smith FM) dismissing an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) affirming a decision of a delegate of the first respondent (‘the Minister’) to refuse to grant the appellant a protection visa.

Background

2                     The appellant, who claims to be a citizen of the People’s Republic of China (‘the PRC’), entered Australia on 22 February 1997 and lodged an application for a protection visa on 28 February 1997.

3                     On 6 June 1997 a delegate of the Minister refused to grant the appellant a protection visa and on 1 September 1998 the Tribunal affirmed the delegate’s decision.

Appellant’s claims

4                     The appellant claimed to have a well-founded fear of persecution because of his political views and his involvement in the pro-democracy movement in the PRC.  His claims may be broadly divided into three groups.

5                     First, he claimed that he had been beaten, abused and discriminated against at school and deprived of the right to go to senior school because his grandfather was a senior officer in the Kuomingtang Army and was sentenced to death.  At the age of 17 the appellant was sent for ‘re-education’ for six years (‘the Cultural Revolution Claim’).

6                     Second, in 1986 he organised an open debate with company authorities about the best economic and political system.  In early 1987 he was questioned by the security section at work and warned to give up his ‘anti­socialism’ political activities.  Soon after, he was suspended from his job and then demoted.  In January 1988 he was detained for three months and harmed by police for political activities associated with a group called the ‘Pioneer Association’ which he set up with a work colleague, M.  Subsequently, he was dismissed from work and could not obtain work from local authorities because of his political record.  In July 1989 the appellant was detained, tortured and forced to expose his political activities and report other dissidents as a result of his involvement in the ‘Tianjin Youth Freedom Union’, which he set up with M.  He was sent to ‘labour reform’ in March 1990 and was released three years later.  He subsequently had to report to the police station regularly and attend political study classes (‘the 1986 – 1993 Claims’).

7                     Third, at the end of 1996 a number of members of the ‘Freedom Society’, an underground organisation set up by the appellant and M in early 1995, were arrested.  The appellant went into hiding in a small town.  He obtained a passport in January 1997 under a different name and obtained an Australian visa later that month.  He left the PRC more than three weeks later.  After the appellant had left his family, the police visited them several times looking for him because he had not reported to the police station.  His family was subjected to ‘continuous persecution’ and placed on the Public Security Bureau ‘black list’ (‘the Freedom Society Claims’).

The Tribunal’S decision

8                     The Tribunal stated that it had doubts about the ‘credibility’ of some of the appellant’s claims; that information provided by the appellant in his application for protection visa and statutory declaration was misleading; that some of the appellant’s oral evidence was vague and involved implausible claims regarding the reporting period to which the appellant was allegedly subject after his release; that the appellant’s oral evidence was inconsistent with his written evidence and much of his written evidence appeared exaggerated; that it was inherently implausible for the groups in which the appellant claimed to be involved to be both secretive and involved in publicity in the form of pamphlets and a monthly magazine and that it was implausible that the appellant would not continue the group’s activities in some way once he had left the PRC.

9                     The Tribunal went on to make specific findings in respect of the appellant’s claims. 

10                  In respect of the Cultural Revolution Claims, the Tribunal found that the appellant did not have a well-founded fear as a result of his family background as the cultural revolution in the PRC ended on 22 December 1978.

11                  Turning to the 1986 – 1993 Claims, the Tribunal accepted as plausible that the appellant was politically active at his workplace in 1987 – 1988 and that as a result he was detained, demoted and later dismissed.  However, the appellant was able to obtain work after being dismissed in 1987 – 1988.

12                  The Tribunal was unable to find any mention of the appellant or M or the groups they allegedly formed between 1987 and 1996 in the Amnesty International Human Rights Watch lists of detained political activists.  It did not accept that the appellant formed a pro-democracy group with M and others in 1989.  The appellant was unable to explain to the Tribunal’s satisfaction, and his evidence was inconsistent, as to why the group was formed, given the proliferation of major and very active pro-democracy groups.  Nor did it accept that the appellant was detained in July 1989 for nine months by the Public Security Bureau, sent to a labour camp for three years and had to report weekly and then less frequently for nearly four years after release.  These claims were inconsistent with independent country information which indicated that the authorities conducted a crackdown very soon after the events in Tiananmen Square on 4 June 1989.

13                  The Tribunal was not satisfied by the appellant’s explanation for why he chose to form his own group in 1989 instead of joining large and more effective groups.  Nor did the Tribunal accept the appellant’s explanation as to why he was punished so much more harshly than high profile dissidents and leaders of large student and worker groups of the 1989 pro-democracy movement.  The Tribunal found that the claims were implausible because high profile dissidents had suffered lesser punishment, the appellant’s family kept their house and the appellant’s wife kept her job.

14                  With respect to the Freedom Society Claims, the Tribunal did not accept that the appellant was of interest to authorities in 1995 – 1996 because his written and oral evidence was inconsistent; there was no evidence to support the appellant’s assertions; some of his claims in writing were not repeated at the Tribunal hearing despite the Tribunal’s repeated questions as to whether anything else had happened; the independent country information did not indicate that persons involved in past political activity were currently of interest to the authorities; and on the appellant’s own evidence he could still have left the PRC even if he had not changed his name.

15                  The Tribunal did not accept that the authorities had a remaining interest in the appellant following his claimed activities of 1995 – 1996 because his family was re­-housed and his wife still worked in a state run factory.  Further, the Tribunal did not accept the claim that the appellant’s passport was issued in a different name from his real name because it was implausible that the appellant would use a name so close to his real name and retain the correct date of birth on his passport.  Further, the appellant’s written evidence on this aspect of his claim lacked detail and there was no evidence to suggest that the name on the appellant’s passport was not his real name.

Application for judicial review

16                  In the appellant’s application for judicial review dated 1 July 2005 the appellant relied on the following grounds:

1)         If he returns to his country he will be at risk of suffering persecution.

2)         The Tribunal failed to understand his claim and failed to consider relevant matters.

3)         The respondent refused to grant him a protection visa without any proper grounds and proper investigation.

17                  Smith FM held that the first complaint does not raise jurisdictional error, but asserts refugee status.  The second ground is not particularised and his Honour was unable to identify any relevant matters which the Tribunal was legally bound to consider but failed to consider.  The Federal Magistrate held that the third ground had no substance.

18                  Accordingly, the appellant’s application was dismissed.

Submissions on Appeal

19                  The notice of appeal filed on 8 November 2005 contains the following grounds of appeal:

1)         The Federal Magistrate failed to find error of law, jurisdictional error and procedural fairness and relief under s 39B of the Judiciary Act 1903 (Cth).

2)         The Federal Magistrate did not take into account that the appellant had a well-founded fear of persecution.

3)         The Tribunal failed to justify the evidence provided by the appellant.

20                  The appellant did not seek to support these grounds with any written or oral submissions; that is not surprising because, in my view, none of the grounds can be sustained. 

21                  In respect of ground 1, the first respondent submitted that, firstly, there was no error of law on the part of the Tribunal.  The Tribunal correctly summarised the criterion that it was to apply and drew inferences and made findings based on its assessment of the evidence before it.  It was submitted that unless the appellant could demonstrate that there was no evidence to support the Tribunal’s findings, or no evidence to support the inferences drawn by the Tribunal member, there was no error of law that arose from the factual findings made by the Tribunal: Australian Gas Light v Valuer­-General (1940)40 SR (NSW) 126 at 137 – 138; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355.

22                  Secondly, it was submitted that the Tribunal decision was not affected by jurisdictional error.  Specifically, in respect of the appellant’s claim before Smith FM that the Tribunal had failed to consider a relevant consideration, the Court applied the correct test.  In order for the appellant to succeed on this ground, it was submitted that he must adduce evidence that demonstrates that the Tribunal did not consider certain material and that the material constituted a relevant consideration which, in the context of the Migration Act 1958 (Cth), the Tribunal was obliged to consider: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [70] ff; R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49 – 50; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 – 40.  An example of this is where the Tribunal fails to consider the integers of an applicant’s claims: Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 at [79]; Appellant A 169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8 at [24]and [25].  The first respondent submitted that there was no evidence that the Tribunal failed to consider the appellant’s claims.

23                  Thirdly, it was submitted that there was no breach of procedural fairness by the Tribunal.  The content of the Tribunal’s obligation to accord procedural fairness at the hearing and what it requires of the Tribunal with respect to material that tends against the appellant’s claims depends on the particular circumstances of the case: Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal (2002) 190 ALR 601 at [123] and [236]; Re Minister for Immigration & Multicultural Affairs, Ex parte Miah (2001) 206 CLR 57 at [129], [143]; Kioa v West (1985) 159 CLR 550 at 611; R v MacKellar, Ex parte Ratu (1977) 137 CLR 461 at 465 – 466.  The starting point is that a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with any matters relevantly adverse to his interests, which the decision-maker proposes to take into account: Applicant M87 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 214 ALR 310 at [29].  The relevant question to be asked in the present case is: Did the Tribunal fail to give the appellant an opportunity to deal with adverse information that was credible, relevant and significant to the decision to be made?  (See Applicant M87 of 2003 at [36].)

24                  It was submitted that, in the present case, the only evidence of what was or was not put to the appellant at the Tribunal hearing is that contained in the Tribunal’s reasons.  The first respondent submitted that the Tribunal’s reasons alone are not a proper basis for determining what occurred at the Tribunal hearing in respect of information that was adverse to the appellant.  Presented with similar evidential circumstances, Beaumont, Merkel and Hely JJ stated in NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21]:

‘On the evidence before his Honour, it was not open to him to have made a finding that this issue had not been canvassed.  His Honour had no transcript.  (As mentioned, the tape is before us and we refer to it below).  The appellant had not given any evidence (in affidavit form or orally) to the effect that this issue had not been raised.  There was simply no basis upon which his Honour could properly have made this finding.  His reasons should not be read as if he did so.  In the absence of evidence about what occurred at the hearing, the appellant has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice.’

The first respondent submitted that this authority is apposite in the present circumstances and that the Court should not draw inferences as to the conduct of the Tribunal hearing and whether the Tribunal member accorded the appellant procedural fairness based solely on the Tribunal’s reasons. 

25                  I agree with all these submissions and it follows that ground 1 must fail.

26                  In respect of ground 2, the first respondent submitted that Smith FM correctly summarised the Court’s jurisdiction in [2] of his Honour’s judgment.  The court did not have jurisdiction to examine the evidence before the Tribunal except to the extent that it evidenced jurisdictional error: s 474 of the Migration Act; Plaintiff S 157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [78].  It did not have jurisdiction to determine whether the Tribunal should have been satisfied that the appellant had a well-founded fear of persecution for a Convention reason. 

27                  I agree with this submission and it follows that ground 2 must also fail.

28                  In respect of ground 3, the first respondent relied on the submissions it had made in respect of error of law and further submitted that all that the Tribunal was obliged to do in its reasons was to set out its findings on those questions of fact which itconsidered to be material to the decision which it made and the reasons ithad for reaching that decision: Yusuf at [68].  In the present case the Tribunal made adverse credibility findings with respect to the claims made by the appellant.  The first respondent submitted that these credibility findings were made on rational grounds and were arrived at after consideration of matters that were logically probative of the issue of credibility: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 552 and 559.  Specifically, it made the credibility findings based on the appellant’s evidence that was vague, inconsistent, exaggerated, inherently implausible and inconsistent with relevant independent evidence.  As such, the Tribunal’s findings as to the appellant’s credibility were made on rational grounds after consideration of probative material. 

29                  I agree with these submissions and it follows that ground 3 must fail.

Section 424A of the Migration Act

30                  Section 424A of the Migration Act does not apply to this appeal as the application for review of the delegate’s decision by the appellant was made on 25 June 1997 and determined by the Tribunal on 1 September 1998, being prior to the commencement, on 11 December 1998, of the legislation that introduced s 424A: Sch 3 Items 3 and 21of the Migration Legislation Amendment Act (No. 1) 1998 (Cth).

Conclusion

31                  The appeal must be dismissed with costs.

Associate:

Dated:              7 April 2006