FEDERAL COURT OF AUSTRALIA

SZIMZ v Minister for Immigration and Citizenship [2007] FCA 1794

SZIMZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1377 OF 2007

FLICK J

12 NOVEMBER 2007

SYDNEY

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.

REASONS FOR JUDGMENT

1                     The present proceeding is an appeal from a decision of the Federal Magistrates Court given on 26 June 2007. 

2                     The Federal Magistrates Court then dismissed an application to review a decision of the Refugee Review Tribunal handed down on 31 October 2006. 

3                     The jurisdiction of this court is that conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth).  That appellate jurisdiction may be exercised by a single judge:  see s 25(1AA)(a). 

4                     The Notice of Appeal as filed on 16 July 2007 states that the Appellant seeks to raise two grounds of appeal, but thereafter sets forth three grounds, namely:

(1)  The Applicant, in her response to the RRT’s s 424A letter explained that the previous translation attached to her PV application was not accurate, and that she would provide a new and correct translation at a later time.  She submitted her new translation on 17 October 2006.  The RRT, after reading the new translation, pointed out that ‘the applicant has submitted a revised translation of part of her statement, which appears to remove the description of one period of detention, which is still inconsistent with her evidence at hearing.’  The RRT, however, did not specify what new inconsistencies there were, and the Tribunal also failed to invite the applicant to comment on such new inconsistencies.

(2)  The RRT’s decision was affected by prejudice.  The RRT already made its decision on 10 October 2006, but the Applicant provided new evidence, being the new translation on 17 October 2006.  After receiving the new evidence the Tribunal failed to give sufficient consideration to the new evidence.  The Tribunal failed to comply with s 420 of the Act, which requires the Tribunal to conduct the review in a fair and just manner. 

(3)  The Tribunal failed to extend the prescribed period in which the Applicant should reply to the s 424A letter.  Under s 424B(4) the Tribunal may extend the period to 28 days, and in this case it is necessary for the Tribunal to do so because the Applicant, in her letter to the Tribunal on 6 October 2006, wrote that ‘I will get someone to translate my original Chinese statement and then forward you a copy of the translation.’

5                     None of these grounds, it is considered, have been made out. 

The Factual Background.

6                     The Appellant is a citizen of the People’s Republic of China, who arrived in Australia on 1 September 2005.  On 19 September 2005 the Appellant lodged an application for a protection visa with the then Department of Immigration and Multicultural Affairs.  The Appellant claimed to have well-founded fear of persecution by the Chinese authorities as a Falun Gong practitioner and, further, that after she ceased to practise she was imputed as a Falun Gong practitioner. 

7                     A delegate of the first respondent refused the application for a protection visa on 5 October 2005.  On 31 October 2005 the Appellant applied to the Tribunal for a review of that decision.  That Tribunal affirmed the delegate’s decision and the Appellant sought judicial review of the decision before the Federal Magistrates Court.  On 2 July 2006 the Federal Magistrates Court made orders remitting the Tribunal’s decision.  The decision of the Tribunal subsequent to the remitter is the subject of this appeal. 

8                     The Appellant appeared before the Tribunal, newly constituted, and gave oral evidence.  The Tribunal also sent an invitation to the Appellant inviting her to comment on information that would be the reason, or part of the reason for the decision.  The Appellant responded to that invitation on 6 October, and on 17 October submitted a re-translation of an excerpt of the statement attached to her protection visa application. Although the Tribunal had signed its decision on 10 October it recalled its decision on 18 October 2006 in response to the Appellant’s evidence.  The Tribunal, as reconstituted, heard evidence on 7 September 2006. 

9                     The Tribunal did not accept that the Appellant presented a truthful account of her past experiences in China.  It found the Appellant had given inconsistent and contradictory evidence as to her claims.  It also found the Appellant had limited knowledge of Falun Gong.  Consequently, it could not accept the Appellant was, or is, a Falun Gong practitioner, had been detained by the authorities for her practise of Falun Gong, or had come to the adverse attention of the authorities.

10                  The Tribunal also considered that the evidence the Appellant had given regarding her practise of Falun Gong in China, practise of Falun Gong in Australia, detention due to Falun Gong, the places she was in hiding, and the details as to her leaving China, were inconsistent.  The Tribunal noted that evidence given at the hearing was inconsistent with the evidence provided in the Appellant’s protection visa application.  The Tribunal did not find the Appellant’s explanation that the translation of her written claims was inaccurate was able to render the claims reconcilable.  It found the evidence was still inconsistent, and that the discrepancies were so significant that it could not accept her explanation or claims.  Consequently, the Tribunal affirmed the delegate’s decision to refuse grant of the visa.

The Migration Act 1958 (Cth)

11                  The Federal Magistrates Court has the same original jurisdiction as the High Court under s 75(5) of the Constitution: see Migration Act 1958 (Cth) s 476(1). 

12                  Section 474 of the Act renders “privative clause” decisions “final and conclusive.” 

13                  Provisions such as s 474 are within the legislative competence of Commonwealth Parliament: see Plaintiff S 157 v Commonwealth of Australia [2003] HCA 2, 211 CLR 476. 

14                  The effect of such provisions, however, is to preclude from review decisions which are within the jurisdiction entrusted to the decision-maker.  Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S 157 thus observed, at p 505–6 (footnotes omitted):

When regard is had to the phrase “under this Act” in s 474(2) of the Act, the words of that sub-section are not apt to review either to decisions purportedly made under the Act, or as some of the submissions made on behalf of the Commonwealth might suggest, to decisions of the kind that might be made under the Act.  Moreover, if the words of the sub-section were to be construed in either of those ways, s 474(1)(c) would be in direct conflict with s 75(5) of the Constitution and, thus, invalid.

Further, they would confer authority on a non-judicial decision-maker of the Commonwealth to determine conclusively the limits of its own jurisdiction and thus, at least in some cases, infringe the mandate implicit in the text of Ch III of the Constitution, that the judicial power of the Commonwealth be exercised only by the courts named and referred to in s 71.  Once it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution, specifically s 75, the expression “decision[s]…  made under this Act” must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction, nor an excess of the jurisdiction conferred by the Act.  Indeed, so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is “regarded, in law, as no decision at all.”  Thus, if there has been jurisdictional error because, for example, of a failure to discharge “imperative duties” or to observe “inviolable limitations or restraints” the decision in question cannot properly be described in the terms used in s 474(2) as “a decision … made under this Act” and is, thus, not a “privative clause” decision, as defined in s 474(2) and (3) of the Act.

To say that a decision involves jurisdictional error is not a “decision … made under the Act” is not to deny that it may be necessary to engage in the reconciliation process earlier discussed to ascertain whether the failure to observe some procedural or other requirement of the Act constitutes an error which has resulted in a failure to exercise jurisdiction, or in the decision maker exceeding its jurisdiction.

The Translation Inconsistencies

Ground 1

15                  Leaving aside deficiencies in the Notice of Appeal, and considering the reasons for decision as published by the Federal Magistrates Court, that Court relevantly concluded as follows:

[31] As to the ground that the Tribunal failed to afford the Applicant procedural fairness by preventing her from submitting further evidence, the facts indicate that this is not the case at all.  The Applicant did submit further evidence by means of a document on 17 October 2006 containing a fresh translation of part of the Applicant’s original statement.  It is quite clear that the Tribunal considered that material.  The Tribunal recalled the decision and revised the decision based on what was in that late-submitted document.  Contrary to the Applicant’s oral submission the Tribunal did not hand down its decision before the Applicant had a chance to provide further evidence.  Quite the reverse, in fact. 

[32] The Applicant claimed that the Tribunal’s s 424A letter did not fully disclose all the adverse information that the Tribunal relied on in making the adverse finding.  There is no particularisation of that.  The Applicant claims that the Tribunal was not satisfied with her explanation, and that the Tribunal should have invited the Applicant to provide further comments.  There is no obligation to do that whatsoever.  Indeed, s 424A of the Act does not apply, in that the material referred to was all provided by the Applicant, and as such, is information that the Applicant gave for the purpose of the application.  It is specifically excluded by s 424A(3)(b) of the Act.

16                  Whether the issue as sought to be agitated by the Appellant be advanced to the Federal Magistrates Court or this Court, ground 1 does not demonstrate that the Tribunal committed any error in excess of jurisdiction, or any appealable error by the Federal Magistrates Court.  That which constitutes ‘jurisdictional error’ has been identified in part by Brennan, Deane, Toohey, Gaudron and McHugh JJ in Craig v South Australia (1995) 184 CLR 163 at 179 as follows:

If such an administrative Tribunal falls into error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material, or at least in some circumstances to make an erroneous finding, or to reach a mistaken conclusion, and the Tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.  Such an error of law is jurisdictional error which will invalidate any order or decision of a Tribunal which reflects it.

This list is not exhaustive: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.

17                  There has been no failure on the part of the Tribunal to extend to the Appellant every opportunity to comment upon perceived inconsistencies in her evidence.  In the letter to the Appellant dated 13 September 2006, a Tribunal officer wrote to the Appellant a detailed letter setting forth inconsistencies in her evidence and foreshadowing the prospect that the Tribunal may well make adverse findings against her by reason of those inconsistencies.  That letter stated in part:

This information is also relevant because the inconsistencies in your evidence as set out above may lead the Tribunal to doubt your credibility more generally; that is, whether you can be believed. 

18                  It was in response to that letter that the Appellant wrote on 6 October 2006 stating her intention that someone would translate her original Chinese statement, and that the statement or translation would be forwarded to the Tribunal.  That further correspondence to the Tribunal was dated 17 October 2006. 

19                  Concurrence is expressed with the reasons of the Federal Magistrate.  The Tribunal’s decision is also replete with instances of inconsistencies in the Appellant’s evidence.  Those inconsistencies identified by the Tribunal range from: inconsistencies in where she was living in the years prior to her arrival in Australia; inconsistencies in her evidence as to the occasions upon which she says she was detained (those inconsistencies being in her evidence both at the Tribunal hearing on 6 December 2005 and on 7 September 2006); inconsistencies as to her practise of Falun Gong; and inconsistencies in her evidence about obtaining her passport. 

20                  There was no obligation upon the Tribunal in its reasons to further elaborate upon the inconsistencies in the Appellant’s evidence.  The factual findings as made by the Tribunal were matters entrusted to it for determination.  No factual error can be discerned.  Even if there be a factual error, however, such an error is unlikely to constitute a jurisdictional error:  see Re Minister for Immigration and Multicultural Affairs; Ex Parte Cohen [2001] HCA 10, 75 ALJR 542 at [36] per McHugh J.  The Tribunal has not failed to explain its reasoning process. 

21                  Section 424A does not oblige the Tribunal to give advance written notice, not merely of its reasons, but at each step in its prospective reasoning process: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, 235 ALR 609 at 616 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.  The Appellant was given an adequate opportunity to address the issues before the Tribunal, and there has been no denial in procedural fairness in not extending to the Appellant yet a further opportunity to comment upon inconsistencies. 

22                  Ground 1 of the notice of appeal thus fails. 

The Prejudice Allegations

Ground 2

23                  The second ground of appeal asserts that the Tribunal’s decision “was affected by prejudice.” 

24                  It is not clear whether this is an allegation as to bias or a lack of good faith.  If it is an allegation of bias, such an allegation must be made distinctly and clearly proved: see Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 at [69], 205 CLR 507; see also Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J.  The allegation in the present proceedings is that the Tribunal failed to give sufficient consideration to the “new evidence being the translation on 17 October 2006.”  Such an allegation, it is considered, is surprising. 

25                  The Tribunal in its reasons for decision expressly stated that it did give consideration to the “new evidence.”  The Tribunal’s reasons state in part:

The Applicant has submitted a revised translation of part of her statement, which appears to remove the description of one period of detention, which is still inconsistent with her evidence at hearing. 

26                  This, of course, is the passage relied upon in the notice of appeal.  The allegation is also surprising, bearing in mind that the records of the Refugee Review Tribunal expressly record the fact that further material was received on 17 October 2006, and over what appears to be the signature of a Tribunal member states:

I have considered the additional material and revised my decision accordingly.  Case note does not allow me to alter the decision record date. 

27                  The Federal Magistrates Court provided the following reasons for rejecting a comparable contention heard and resolved by that Court, namely:

[35] As to the second claim that the Tribunal’s decision was affected by prejudice, that is, of course, a serious allegation, an allegation that the Tribunal did not act in good faith.  That must be strictly alleged and strictly proved.  The claim that the Tribunal had already made its decision on 10 October, but the Applicant provided new evidence on 17 October, is not a correct statement of the facts.  The Tribunal had originally signed its decision on 10 October 2006, but recalled that decision after receiving and considering the Applicant’s document of 17 October 2006. 

[36] There is no evidence of prejudice or bias or failure to act in good faith whatsoever.  Quite the reverse, in fact.  The Applicant claimed that after receiving new evidence the Tribunal failed to give sufficient consideration to the new evidence.  There was no evidence of that whatsoever.  The Tribunal considered that, but rejected it.

28                  An administrative decision-maker who is “affected by prejudice” may well fail to discharge the task entrusted to him by the legislature, and may potentially expose his decision to challenge by way of “jurisdictional error.”  So too, albeit less clearly, may a decision maker in respect to whom there is an “appearance of bias.” 

29                  But neither potential is here made out on the facts.  The Tribunal did, in fact, consider the material provided by the Appellant, and there is no basis upon which it can be contended that the Tribunal failed to keep an open mind when considering all of the material provided.

30                  The Tribunal did not close its mind in respect to the additional material provided:  see Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 at [21] per Branson, Finn and Bennett JJ.  There is no basis upon which it can be contended that the Tribunal’s decision “was affected by prejudice.” 

31                  Ground 2 of the appeal should also be dismissed.

A Failure to Extend Time

Ground 3

32                  The Federal Magistrates Court resolved the same contention as then advanced before it as follows:

[40] The Applicant complained that the Tribunal failed to extend the prescribed period within which the applicant should reply to the s 424A letter.  The Applicant refers to the provisions of s 424B(4) which says “if a person is to respond to an invitation within a prescribed period the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.”  The fact here is that the Applicant, on 6 October, which was the day for comments, replied and indicated that the Applicant would ask a translator to translate her Chinese statement again and provide the new translation:

As soon as possible.

[41] There was no specific request for an extension of time, except a statement that a further document would be provided as soon as possible.  In any event, that document was provided on 17 October, 11 days later.  The Tribunal did consider it.  There is no failure to comply to s 424B(4), and in any event, that sub-section does not place any obligation to extend the period of time within which a person is to respond to an invitation  The sub-section provides that the Tribunal may extend that period for a prescribed further period.  In this case the Tribunal may not have sent a letter granting a specific extension of time, but the Tribunal did consider the additional evidence when it was submitted.  There is no jurisdictional error. 

33                  No error has been exposed in respect to this reasoning or these conclusions of the Federal Magistrates Court.

34                  Whether or not the statutory requirements imposed by ss 424A and 424B are jurisdictional in character has been the subject of prior decisions of this Court.  Jacobson J has usefully summarised some of those decisions in SZEXZ v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 449 at [30]–[49].  As was similarly concluded by Jacobson J, it is not considered that any jurisdictional error is demonstrated in circumstances where there has been a failure to comply with s 424B(4) — assuming there to be a failure to “extend time” — but where the additional material has, in fact, been considered. 

35                  This final ground of appeal should also be dismissed.

The Application to Adjourn Proceedings

36                  An application was made at the outset of the hearing of this appeal to adjourn the proceedings.  That application was opposed by counsel for the First Respondent.  The First Respondent correctly contended that the Notice of Appeal had been filed in July, and that the present Appellant had had the pro bono assistance of counsel before the Tribunal.  The application for the adjournment was refused.  Any further adjournment, it is considered, would be futile. 

ORDERS

37                  The Court orders that:

1.                  The appeal be dismissed;

2.                  The Appellant pay the costs of the first Respondent. 

Associate:

Dated:         22 November 2007