FEDERAL COURT OF AUSTRALIA

SZIXY v Minister for Immigration and Citizenship [2007] FCA 1276

SZIXY AND SZIXZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD1071 OF 2007

COLLIER J

20 AUGUST 2007

BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1.                  The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     This is an appeal against a judgment of Lloyd-Jones FM of 24 May 2007 dismissing an application for judicial review of a decision of the second respondent (“the Tribunal”) signed on 24 April 2006 and handed down on 4 May 2006 (SZIXY & Anor v Minister for Immigration & Anor [2007] FMCA 784). The Tribunal had affirmed a decision of a delegate of the first respondent (“the Minister”) to refuse the grant of protection visas to the appellants.

Background

2                     The appellants are husband and wife who are citizens of the People’s Republic of China (“China”). The second appellant, the appellant wife, arrived in Australia on 7 May 2005. The first appellant, the appellant husband, arrived on 14 September 2005. On 28 October 2005 the appellants lodged an application for a protection visa with the then Department of Immigration and Multicultural and Indigenous Affairs. A delegate of the Minister refused the application on 6 January 2006. On 6 February 2006 the appellants applied to the Tribunal for a review of that decision. Only the first appellant has made claims for protection under the Convention, with his wife relying on membership of his family unit. I intend to refer to the first appellant as “the appellant”.

3                     The appellant claimed to have well-founded fear of persecution because of his political opinion. Specifically, he claimed to fear harm on account of his suspected involvement in an anti-government organisation and because he distributed an open letter critical of the government.

4                     The appellant claimed that in around March 2005 he was questioned by officers of the Public Security Bureau (PSB) about a worker in his workshop, Mr He, who was alleged to be a leader and founder of an illegal political organisation known as the “Workers’ Club”. At that time the appellant informed the PSB that he did not know anything about the matter. The appellant later ascertained that Mr He had been arrested and that Mr He was involved in a group which expressed some dissident opinions against the government, namely, the Workers’ Club. The appellant claimed that Mr He was a particularly important worker in the workshop and that he visited Mr He in detention and tried to “save him”.

5                     The appellant claimed that in June 2005 he was required to provide a report to the PSB about Mr He and the Workers’ Club. The appellant claimed that he refused to provide a report to the PSB because he did not believe Mr He had done anything wrong. The appellant claimed that as result he was detained and beaten, following which he spent two weeks in hospital. He claimed that he was subject to questioning by the PSB on at least 10 occasions and that his home was searched on three occasions. The appellant claimed that he was targeted for investigation because it was suspected he might also get involved in the Workers’ Club.

6                     In August 2005 the appellant obtained his visa and he left for Australia in September 2005. However, he claims that, before he left he wrote an open letter to the Chinese government seeking compliance with the Constitution and protection of freedom of speech and association and seeking the release of political dissidents such as Mr He. The appellant claimed that he made around 200 copies of the letter and posted it to media, schools and universities. He claimed that the person who assisted him to distribute the 200 letters was arrested and that he is now regarded as political dissident by the authorities in China.

Proceedings before the Tribunal

7                     Both appellants attended a hearing before the Tribunal on 8 March 2006 and gave oral evidence assisted by an interpreter in the Mandarin language. The appellant gave further details to his claims. In response to questions from the Tribunal about his fears of returning to China the appellant claimed that his parents had told him the PSB sent people to his house every few days to arrest him and that a friend of his in the local government had informed him that there were plans to arrest him. The appellant was also questioned about his involvement in the Workers’ Club, Mr He’s role in the workshop, his claimed interrogations by the PSB, the PSB’s knowledge of his trip to Australia and the how the appellant prepared the open letter. Further, on 10 March 2006 the Tribunal wrote to the appellant to obtain his comments on inconsistencies and information in his evidence that could form the reason or part of the reason for the decision. The appellant replied to that letter on 24 March 2006 with additional information and comments.

8                     After considering the evidence, the Tribunal found that it was not satisfied the appellant had provided a credible account of his activities in China or of the threat to him from the authorities. The Tribunal was not satisfied with the evidence and found inconsistencies in the evidence relating to Mr He, especially in relation to Mr He’s role in the company and social position, and the appellant’s role with the Workers’ Club. The Tribunal had put these inconsistencies to the appellant in the letter of 10 March 2006 and had regard to the appellant’s responses but was not satisfied that they resolved the inconsistencies. The Tribunal was not satisfied the appellant had been involved in supporting a person who was a founder of a Workers’ Club or that the appellant had been involved in such a club.

9                     As the Tribunal did not accept the appellant’s involvement with the club, the Tribunal was also not satisfied that the appellant suffered harm at the hands of the PSB because of such involvement. The Tribunal was not satisfied as to the plausibility of the appellant’s claim of being able to maintain employment despite being the target of ongoing investigations by the PSB for a very serious matter. Furthermore, the Tribunal was not satisfied the appellant had been the subject of any active continuing investigation as he did not experience any difficulty leaving China with a genuine passport in his own name.

10                  The Tribunal was not satisfied as to the appellant’s claim that he wrote an open letter critical of the government. The Tribunal found the appellant had given inconsistent evidence as to whether the letter contained information which would cause problems for others. The Tribunal also had regard to the fact that it was only at the hearing that the appellant had mentioned that the letter caused the police to begin visiting his home. The Tribunal found the claim the PSB had visited the appellant’s house was one made to strengthen his claims. Further, it did not accept that his assistant had been arrested or that the PSB visited his home to arrest him.

11                  Consequently, the Tribunal was not satisfied the appellant had well-founded fear of persecution because of his political opinion, or for any other Convention reason, should he return to China now or in the reasonably foreseeable future and was not satisfied the appellant was a refugee.

Before the Federal Magistrate

12                  The appellant relied on an amended application filed in the Federal Magistrates Court on 11 September 2006 which contained three grounds.

13                  The first ground asserted the appellant’s claims were not considered properly and fairly because the Presiding Member failed to consider important evidence. The appellant asserted the Tribunal ignored the key issue, namely that the appellant was not on a “wanted list” before his departure but was placed on this list after he left China and the PSB visited his house and arrested his assistant. The appellant submitted that the Tribunal made an obvious wrong finding in regard to the relationship between the appellant and Mr He because the Tribunal member did not understand the structure of the enterprise and the appellant and Mr He’s role in the company.

14                  The second ground contended that the Presiding Tribunal Member failed to comply with the obligations under s 424A(1) of the Migration Act 1958 (Cth) (“the Act”) which provided that the appellant must be given certain information. The appellant submitted that the Presiding Member should have made the appellant understand why certain pieces of information were relevant and invited him to comment further on them.

15                  The third ground alleged the Presiding Member failed to comply with the obligations under s 425 of the Act and invite the appellant to appear after submitting his responses on 24 March 2006 to the 10 March 2006 letter from the Tribunal.

16                  The appellant did not file written submissions but made a number of oral submissions in respect of these grounds.

17                  Lloyd-Jones FM found that he was satisfied that none of the grounds identified could be sustained and further it was not apparent that any other grounds of review existed (at [31]). His Honour, referring to the submissions of both parties observed that:

·                    The Tribunal considered the appellant’s claims but did not believe the appellant because of the adverse credibility findings which were in a large part based on the internal inconsistencies (such as those with respect to Mr He) and implausibility in light of country information. His Honour found that he was satisfied that the appellant’s first ground of appeal could not be sustained (at [15]).

·                    In oral submissions the appellant raised the fact that Tribunal did not understand that the appellant and the second appellant could be of interest to the authorities even though they were able to leave China on their own passports (at [16]). His Honour found that it was open to the Tribunal to find that it was not satisfied that the appellant was of significant interest to the PSB nor the subject of an active continuing investigation. His Honour noted that whilst more weight was given by the Tribunal to the country information as to how the appellant was able to leave China than to the appellant’s explanation of those circumstances, the matter of weight was a factual issue for the Tribunal (at [18]).

·                    His Honour was satisfied the Tribunal had complied with its obligations under s 424A(1) of the Act and that the appellant’s claim that the country information was not dealt with in the correct manner is misconceived (at [23]). His Honour agreed with the Minister’s submissions that the findings of the Tribunal were open to it and the Tribunal was not required “to put its appraisal of the responses to the applicants for comment” (at [26]).

18                  His Honour found that a fair reading of the Tribunal’s decision clearly indicated that the Tribunal complied with all of its obligations (at [30]) and that there was no jurisdictional error in the decision-making process. His Honour dismissed the application with costs.

On appeal in this Court

19                  The appellants filed a notice of appeal on 14 June 2007 in this Court raising three grounds of appeal:

·                    the Federal Magistrate was wrong in finding that the Tribunal acted properly in its findings

·                    the Federal Magistrate was wrong in finding that the Tribunal complied with its obligation under s 424A(1) of the Act

·                    the Federal Magistrate was wrong in finding that the Tribunal complied with its obligation under s 425 of the Act.

20                  The appellants sought orders that that the decision of the Federal Magistrate be set aside and that the matter be remitted to a differently constituted Tribunal for determination in accordance with law.

21                  The issues raised by way of particulars were as follows:

·                    The Tribunal failed to consider the evidence that the appellant was in a “vulnerable situation”; in an alien environment; and “may experience serious difficulties, technical and psychological”.

·                    The Tribunal made findings based on incorrect information and a misunderstanding of the claims particularly as to the PSB placing the appellant on the “wanted list” after he had left China.

·                    The Tribunal made a wrong finding in relation to the working relationship between the appellant and Mr He.

·                    The Tribunal exceeded its powers and committed jurisdictional error in identifying a wrong question, ignoring relevant material and relying on irrelevant material.

·                    The Federal Magistrate was wrong in finding the Tribunal complied with its obligations under s 424A(1) of the Act. The Federal Magistrate should have ensured that the appellant understood why the information or negative issues or concerns were relevant to the review and invited him to comment on that.

·                    The Federal Magistrate was wrong in finding the Tribunal complied with its obligations under s 425 of the Act. The Tribunal must invite the appellant to appear to give evidence and present arguments.

Appeal hearing

22                  The appellant filed no written submissions, but at the hearing in essence reiterated the grounds of appeal, in particular his claim that the Tribunal failed to understand the relationship between himself and Mr He, and the issue of the appellant’s ability to leave China without hindrance.

23                  Both the grounds of appeal and the supporting particulars are in similar terms to the grounds of review before Lloyd-Jones FM, however couched in terms referable to what the appellant claims was the wrong decision of the Federal Magistrate to dismiss the appellant’s application for review. I propose to deal with each ground of appeal in turn.

1. The Federal Magistrate was wrong in finding that the Tribunal acted properly in its findings

24                  The elements of this ground of appeal were considered in detail at first instance at [10]-[15] of his Honour’s judgment. In stating that he was satisfied that the claims raised by the appellant could not be sustained, his Honour agreed with the submissions of counsel for the Minister that the Court cannot review the fairness of actual findings; that issues of credibility were issues for the Tribunal and that the Tribunal was not obliged to give reasons why it accepted or rejected individual pieces of evidence or contentions made by the appellant.

25                  In my view no error is demonstrated by these findings.

2. The Federal Magistrate was wrong in finding that the Tribunal has complied with its obligation under section 424A(1)

26                  In relation to this ground of appeal, the appellant claimed that:

·                    the Tribunal sent him a letter after the hearing (namely the s 424A letter of 10 March 2006) but refused to consider his comment on the information given by it properly and fairly

·                    the Tribunal is required to:

o       make him understand particulars of those pieces of information or negative issues or negative concerns which are in relation to his further claims in his letter of 24 March 2006 if the Tribunal used them as reasons, or part of reasons in making its decision; and

o       ensure that he understands why those pieces of information or negative issues or negative concerns are relevant to the review; and

o       invite him to comment on them.

27                  Again, the elements of this ground of appeal were considered in detail at first instance at [16]-[23] of his Honour’s judgment. In stating that he was satisfied that the claims raised by the appellant could not be sustained, his Honour noted that:

·                    the s 424A letter of 10 March 2006 from the Tribunal to the appellant’s agent put to the appellant details of country information concerning the ability of the Chinese authorities to monitor and control the exit of citizens through airports.

·                    the Tribunal clearly accepted and relied on country information in its decision in preference to the explanation of the appellant as to how he was able to leave China. The matter of weight is a factual issue.

·                    the finding of the Tribunal as to the relationship between the appellant and Mr He, and views of the Tribunal as to inconsistencies between various statements of the appellant as to this relationship, were open to the Tribunal on the evidence.

·                    the s 424A letter of 10 March 2006 from the Tribunal to the appellant’s agent put to the appellant information that was taken from the appellant’s application for a protection visa, and particularised the relevance of that information.

·                    section 424A obligations do not apply to independent country information or information given by the appellant as part if the application for review, by reason of s 424A(3)(a): QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92.

28                  Further, Mr Reilly for the Minister has submitted that:

·                    since the decision of Lloyd-Jones FM in this case, the High Court has held that s 424A(1) only applies to information that in its terms contains a “rejection, denial or undermining” of an applicant’s claims to be a person to whom Australia owes protection obligations, and that this assessment is to be made “in advance - and independently” of the Tribunal’s actual reasoning on the case: SZBYR v MIAC (2007) 235 ALR 609 at 615

·                    it does not appear that there was any information before the Tribunal that required disclosure under s 424A(1) on the test articulated in SZBYR, and accordingly there was no breach of s 424A by the Tribunal

·                    the appellant has not identified any such information.

29                  In SYBYR 235 ALR 609 the High Court considered, inter alia, the meaning of the s 424A(1)(a) which provides:

(1) Subject to subsection (3), the Tribunal must

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

30                  In commenting on the requirement embodied in this provision, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said:

“Section 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. Rather, the Tribunal’s obligation is limited to the written provision of ‘particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.’” What, then, was the ‘information’ that the appellants say the Tribunal should have provided? In their written submissions, the appellants appeared to focus on the requisite ‘information’ as being the ‘inconsistencies’ between their statutory declaration and oral evidence. However, in oral argument they focused on the provision of the relevant passages in the statutory declaration itself, from which the inconsistencies were later said to arise. (SYBYR 235 ALR at 615)

31                  Of particular relevance to the case before me is comments of their Honours (at 616) that:

…if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting ‘information’ within the meaning of par (a) of s 424A(1)... Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word ‘information’...

“does not encompass the tribunal’s subjective appraisals, thought processes or determinations...nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.”

32                  In my view, no error is demonstrated in the findings of his Honour in relation to the application of s 424A. As his Honour found, and as is clear from the material before me, the material put to the appellant by the Tribunal was based on country information and material the appellant had earlier put to the Tribunal, and the Tribunal by its letter of 10 March 2006 invited the appellant to comment. Such information does not attract the operation of s 424A.

33                  Further I accept the submission of Mr Reilly that there was no additional information which necessitated disclosure by the Tribunal to the appellant. The Tribunal’s letter of 10 March 2006 and the appellant’s response of 24 March 2006 did not give rise to any further obligations on the part of the Tribunal under s 424A(1). As indicated by the High Court in SZBYR, consideration by the Tribunal of apparent inconsistencies in the evidence of the appellant, and a subsequent decision by the Tribunal, is not “information” within s 424A(1)(a).

3. The Federal Magistrate was wrong in finding that the Tribunal has complied with its obligation under section 425

34                  Clearly, a hearing took place before the Tribunal with respect to the application of the appellant on 8 March 2006. This ground of appeal is founded in the claim of the appellant that the Tribunal erred in not inviting him to return for a subsequent hearing after he provided additional material on 24 March 2006, despite his requests for a further hearing.

35                  The elements of this ground of appeal were considered in detail at first instance by Lloyd-Jones FM at [26]-[30]. I agree with the findings of his Honour that there was no obligation on the Tribunal to accede to the request for a further hearing; that the Tribunal had complied with all its obligations under the Act; and that there was no evidence to support this ground of appeal.

36                  As none of the grounds of appeal of the appellant can be sustained, it follows that the appeal must be dismissed.

ORDER

1.                  The appeal be dismissed with costs.

Associate:

Dated:         20 August 2007