FEDERAL COURT OF AUSTRALIA

SZIFB v Minister for Immigration & Citizenship [2007] FCA 1727 

IN THE MATTER OF SZIFB v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1319 OF 2007

JACOBSON J

9 November 2007

SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

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

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 from a decision of Raphael FM delivered on 21 June 2007 dismissing an application for review of a decision of the Refugee Review Tribunal.  The Tribunal affirmed the decision of a delegate not to grant the appellant a protection visa. 

2                     The appellant is a citizen of the People’s Republic of China.  She arrived in Australia on 19 April 2005 and lodged an application for a protection visa shortly after her arrival.  The delegate refused to grant the appellant a protection visa on 24 August 2005. 

3                     The decision of the Tribunal was dated 5 December 2005, and it was handed down on 22 December 2005. The appellant was invited to attend a hearing before the Tribunal scheduled for 29 November 2005.  However, she failed to attend the hearing and the Tribunal proceeded to make a decision in accordance with s 426A of the Migration Act 1958 (Cth).

4                     The Tribunal’s reasons were short.  The essence of the reasons was set out in the passage quoted by Raphael FM at [2] of his reasons for judgment.  The Tribunal recorded that the appellant’s claim to have a well-founded fear of persecution was briefly stated.  The claims amounted to an assertion that the appellant had attended a prison in China in her capacity as a nurse accompanying a visiting doctor.  She said that she had observed prisoners being severely tortured.  The Tribunal observed that there was no further detail given by the appellant about her observations at the prison.  However, the Tribunal went on to say that the appellant had claimed that she and the treating physician were spoken to by security forces who told them to keep their mouths shut about what they had seen otherwise they would be in trouble.  The Tribunal also recorded the appellant’s statement that the doctor was sacked from his position and that she considered her own position to be at risk; she also felt that the security forces would do something bad to her and she therefore fled China with the assistance of her relatives. 

5                     The Tribunal said that on the evidence before it, and in the absence of any evidence to corroborate her claims, the Tribunal was unable to find that the appellant would face a real chance of persecution if she were to return to China.  It referred to the absence of details in the statement given by the appellant in support of her claims. 

6                     The Tribunal concluded by saying that given the absence of evidence and detail in the statement, it was based on unsupported claims made by the appellant and accordingly the Tribunal was unable to reach the necessary state of satisfaction that there was a real chance that the appellant would be persecuted for a Convention reason if she returns to China. 

7                     Raphael FM dismissed the application in very brief reasons.  His Honour pointed out that under s 65 of the Act, unless the necessary state of satisfaction is reached, the Tribunal is bound not to grant a protection visa.  His Honour was of the view that there was nothing in the Tribunal’s reasons to demonstrate jurisdictional error in the Tribunal’s conclusion that it was unable to attain the necessary state of satisfaction.

8                     The notice of appeal states three grounds.  The first ground is bias; the second ground is that the Tribunal disbelieved the applicant’s claims without giving reasonable evidence or material; the third ground is that the Tribunal did not refer to any independent information in considering her application. 

9                     The bias ground must fail.  The principles were stated by a Full Court in SBBS v the Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [43]-[48].  It is plain that there is nothing in the reasons given by the Tribunal which could possibly indicate bias within the applicable principles.  The bias ground asserted by the appellant does not seem to extend to a claim of reasonable apprehension of bias; nonetheless, even if it is intended to make that claim, there is no possible basis for such an assertion.  See Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982.  See also VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at [25]-[27].

10                  The appellant’s second ground of appeal must also fail.  As the learned Federal Magistrate observed, the Tribunal was unable, upon the material before it, to reach the necessary state of satisfaction.  It was therefore bound to refuse to grant the visa.  The RRT set out its reasons and no error is disclosed in this.  As the High Court has recently observed in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, the Court has said on a number of occasions that the proceedings in the Tribunal are inquisitorial and it is for the applicant for a protection visa to establish the claims that are made.  This answers the submission put to me this morning by the appellant that the RRT did not give her enough information to inform her what material she should put forward to support her claim.

11                  The third ground of appeal also fails.  This is not a case in which there was a duty on the Tribunal to make further inquiries, nor is it a case in which the Tribunal failed to complete the necessary administrative steps.  See SZJBA v Minister for Immigration & Citizenship [2007] FCA 1592 at [59]-[60] per Allsop J. 

12                  It follows from what I have said that the order I will make is that the appeal be dismissed.

13                  The orders that I will make are:

(1)        that the appeal be dismissed;

(2)        that the appellant pay the costs of the first respondent of the appeal. 

Associate:

Dated:              15 November 2007