FEDERAL COURT OF AUSTRALIA

SZKSO v Minister for Immigration & Citizenship [2007] FCA 1841

Migration Act 1958 (Cth) ss 424A, 425

SZBYR v Minister for Immigration & Citizenship (2007) 185 ALR 609 cited

SZJHL v Minister for Immigration and Citizenship [2007] FCA 1713 cited

SZKSO & Ors v Minister for Immigration [2007] FMCA 1413 considered

VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 cited

SZKSO AND SZKSP v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1760 OF 2007

BENNETT J

21 NOVEMBER 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The appellants are to pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

BACKGROUND

1                     The appellants, who are husband and wife, are citizens of the People’s Republic of China.  The appellants applied for Protection (Class XA) visas.  The substantive claims in support of the protection visa applications were made by the first appellant.  She claimed to fear persecution in China for reason of her political opinion.  She claimed to have been a grape farmer and to have organised protests against a corrupt market administrator in 2006.  She says that she was arrested, accused of anti-government activity and detained.  She also claimed to have distributed anti-government pamphlets upon her release and to have been revealed as the author of those pamphlets by two friends who were arrested after she left China.  She said that she feared being punished for anti-government activity if she returned to China.  The protection visa applications were refused on the basis that the appellants are not persons to whom Australia has protection obligations under the Refugees Convention.

THE TRIBUNAL DECISION

2                     The appellants appealed to the Refugee Review Tribunal.  The Tribunal’s reasons are extensive and contain a detailed description of the first appellant’s claims and the discussion that took place in the Tribunal, in particular a discussion directed to the growing of grapes.  During the hearing the Tribunal put to the first appellant that it had concerns regarding the credibility of her claim that she was a grape farmer in China.  The Tribunal noted that her claims were not supported by independent evidence before the Tribunal.  Subsequently, the Tribunal sent to the appellants a notice under s 424A of the Migration Act 1958 (Cth) (‘the Act’) (‘the s 424A letter’) which set out in full an opinion obtained from an Australian expert with the National Wine & Grape Industry Centre at the New South Wales Department of Primary Industries and attached to the School of Wine and Food Sciences at Charles Sturt University (‘the expert’).  In the s 424A letter the Tribunal invited the appellants to comment on the expert’s report. 

3                     In his report the expert noted that he was not familiar with the particular grape variety said to have been used by the appellants, that is the Jufeng grape variety.  The appellants responded to the s 424A letter and the response is set out in the Tribunal’s reasons.  In its findings the Tribunal said again that it had serious concerns regarding the claim that the first appellant was involved in planting grapes in China.  The Tribunal explained the reasons for those concerns which included what was said to be the first appellant’s ‘near complete lack of knowledge about the process of growing and harvesting grapes’.  The Tribunal did not accept that the first appellant had planted grapes in January 2005 and harvested a large quantity in September of the same year.

4                     It would seem from the Tribunal’s reasons that its rejection of subsequent aspects of the appellants’ claims with regard to the anti-corruption and anti-government activities was based not only on its rejection of the claim to have been involved in grape growing but also because of the account that the first appellant gave as to those activities.  The Tribunal set out in some detail what it described as the ‘additional reasons’ for reaching the view that the appellant was not involved in those activities.  Fundamentally, after setting out the various factual matters the Tribunal said ‘for all of the above reasons the [first appellant] did not impress the Tribunal as a credible witness’.  The Tribunal then gave further reasons for that conclusion. 

5                     It followed that the Tribunal was not satisfied that the first appellant was a person to whom Australia has protection obligations under the Convention.  The Tribunal was satisfied that the appellants’ fear of persecution was not well founded.  It did not accept that the first appellant had been harmed in the past or that there was a real chance that she would be harmed for a Convention reason if she were to return to China.

THE FEDERAL MAGISTRATE’S DECISION

6                     The appellants applied for a review of the Tribunal decision (SZKSO & Ors v Minister for Immigration [2007] FMCA 1413).  The appellants relied on a number of grounds including a claim of bias on the part of the Tribunal and a failure to comply with s 424A of the Act. 

7                     Federal Magistrate Scarlett rejected the appellants’ claim that the Tribunal had made its finding with bias (at [21]).  His Honour noted that the basis of that claim was that the Tribunal had completely ignored independent evidence submitted to it but observed that this does not constitute bias (at [21]).  His Honour noted that it was open to the Tribunal to prefer the evidence of the expert to the evidence of the first appellant (at [19]). 

8                     In dealing with an alleged failure by the Tribunal to comply with its obligations under s 424A of the Act, the Federal Magistrate concluded that s 424A had been complied with and that that ground failed (at [22]). 

9                     His Honour also dismissed what appeared to be a claim that the appellants had not been provided with a hearing as required by s 425 of the Act.  As his Honour noted, there was no transcript to show that the evidence of the appellants was unduly curtailed or truncated or that they were prevented from anything (at [23]). 

THE CURRENT APPEAL

10                  The appellants appeared in person, assisted by an interpreter, and provided particulars of the bases or the grounds of appeal upon which they relied.  The notice of appeal contains three grounds, that the Federal Magistrate:

1.                  erred in law by incorrectly assessing the appellants’ claim that the Tribunal ignored or failed to consider their claim, ignored relevant materials, misstated or misconceived the claim, made a mistake in relation to an important finding of fact and incorrectly assessed the first appellant’s credibility;

2.                  was wrong in finding that the Tribunal considered the appellants’ claims properly when the Tribunal made its finding with bias and ignored evidence put to it; and

3.                  was wrong in finding that the Tribunal complied with its obligations under s 424A of the Act.

Failure to consider the appellant’s claims

11                  Before me, the first appellant explained that the appellants were not saying that the Tribunal had failed to consider a claim that had been made to it but rather that the Tribunal did not believe what the first appellant had said.  A decision on credibility is a matter for the Tribunal.  This ground of appeal does not succeed.

Did the Tribunal ignore relevant material before it?

12                  The appellants did not point to any matter which the Tribunal ignored other than to assert that the Tribunal preferred the evidence of the expert, which it should not have done because the expert was not familiar with grapes in China.  The first appellant also asserted that, while in the response to the s 424A letter the appellants were unable to provide further information about the grape type that they said that they had grown, this information could easily have been found on the internet.  The appellants complained that the Tribunal had not found it.

13                  The Tribunal was under no obligation to conduct an internet search.  A failure to do so does not amount to an ignoring of relevant materials.  No basis for this ground has been established.

Did the Tribunal misunderstand the claim or make a mistake?

14                  The appellants claim that the Tribunal misunderstood their claim, made a mistake in relation to an important finding of fact, or incorrectly assessed their credibility.  I have already set out what the appellants meant by assertions as to the Tribunal’s consideration of their claims.  It is clear that all these matters relate to factual findings of the Tribunal which were open to it on the evidence and do not found jurisdictional error.  Accordingly, no basis for this ground has been established. 

Bias on the part of the Tribunal; ignoring evidence

15                  The appellants claim that the Tribunal made its finding with bias.  There is no evidence to support such an allegation and it is rejected. 

16                  The appellants also claim that the Tribunal preferred the evidence of the expert but never considered ‘independent evidence submitted by the first appellant’.  This again seems to raise a complaint about a factual finding which was open to the Tribunal.  No evidence has been pointed to that was not considered by the Tribunal.  No basis for this ground has been established. 

Failure to comply with s 424A of the Act

17                  The appellants’ contentions in relation to the Tribunal’s obligations under s 424A of the Act have been variously expressed.  The appellants accept that the Tribunal gave them a chance to comment on information after the hearing.  The assertion that the Tribunal did not provide a complete copy of the expert’s report has not been made out as it is apparent that the whole of that report was supplied to the appellants.  The assertion that there was no genuine opportunity to comment on the report is not made out as the appellants were given the opportunity in the s 424A letter and did respond to it.  It is apparent from the Tribunal’s reasons that the response was not only set out in those reasons but was also taken into account by the Tribunal. 

18                  To the extent that the appellants are submitting that the Tribunal was obliged to have further discussion with them or to provide another hearing, the Tribunal was under no such obligation by reason of s 424A(1) of the Act (SZBYR v Minister for Immigration & Citizenship (2007) 185 ALR 609, SZJHL v Minister for Immigration and Citizenship [2007] FCA 1713).  To the extent that the appellants are saying that the Tribunal had an obligation to notify them of its thought processes after receipt of the comments pursuant to the s 424A(1) letter, the Tribunal was under no obligation to do so (SZBYR; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123). 

CONCLUSION

19                  As was submitted by the Minister, a Tribunal is not guilty of bias if, after considering the appellant’s evidence, it does not believe that evidence.  Further, even if the Tribunal came to the wrong conclusion, that does not found jurisdictional error in circumstances where the Tribunal complied with its obligations under the Act.  None of the grounds of appeal have been made out.  It follows that the appeal must be dismissed.

20                  The appellants are to pay the first respondent’s costs. 

Associate:

Dated:         29 November 2007