FEDERAL COURT OF AUSTRALIA

SZITB v Minister for Immigration and Citizenship [2007] FCA 1954

SZITB v MINISTER FOR IMMIGRATION AND CITIZENSHIP

NSD 1683 OF 2007

FLICK J

23 NOVEMBER 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The Appeal be dismissed.

2.                  The Appellant to pay the costs of the First Respondent assessed in the sum of $4000.

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 1 August 2007, dismissing an Application seeking to review a decision of the Refugee Review Tribunal. 

2                     The Tribunal’s decision affirmed the decision of a delegate of the Minister to not grant the Appellant a protection (Class XA) visa.  The decision of the Tribunal, the subject of review by the Federal Magistrates Court, was the second decision of that Tribunal in relation to the now Appellant.  The Tribunal previously conducted two hearings, one on 22 November 2005, and a second on 13 December 2005. 

3                     The Tribunal handed down its decision on 21 March 2006.  That decision was set aside on 2 August 2006.  Upon the proceedings being remitted, a differently constituted Tribunal conducted a further hearing on 5 October 2006 and handed down its decision on 21 November 2006. 

4                     That decision of the Tribunal was the subject of the decision of the Federal Magistrates Court now under appeal before this Court.  The jurisdiction of this Court to hear this appeal 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).  On the hearing of this appeal the Appellant appeared unrepresented, but with the assistance of a court interpreter. 

Grounds of appeal

5                     The Notice of Appeal identifies the grounds of appeal as follows: 

1.     The Federal Magistrates erred in law;

2.     The Federal Magistrates was wrong in finding that the Refugee Review Tribunal (“the Tribunal”) acted properly in its findings.

A number of “particulars” are thereafter provided.  The particulars provided fall essentially into two categories. 

6                     The first category seeks to focus attention upon the Tribunal’s adverse findings as to the Appellant’s credit.  The Appellant, in her particulars, sets forth an account or an explanation of the circumstances in which two different versions of relevant facts had been presented for consideration.  The two different claims, she asserts, were the source of her “problems”.  Those particulars provide as follows:

3.     There were two claims which had been different from each other before the Tribunal.  One was the claim that had been prepared and submitted to the department by Ms Weining Qian who was a registered migration agent from Eternity International.  The other was the claims that I had personally given to the Tribunal.  As I have claimed, it was a start of many problems, including my credibility, concerning my application.

4.     Many significant evidences could easily prove that I was really innocent in preparing those claims, which were obviously fabricated to the department.  At least, I was unable to speak or to understand any English and I did not have any necessary knowledge about relevant legislations.  It is no doubt that I have been cheated by Ms Weining Qian, no matter whether I complained about her to the Migration Agent’s Registration Authority or not.

5.     However, the Tribunal would rather assess my credibility or made its findings relied on the claims which had in fact been prepared and submitted by Ms Weining Qian, than did so based on the evidence given by myself personally.  So it is no doubt that the Tribunal incorrectly assessed my credibility or the Tribunal made its findings based on incorrect materials, or the Tribunal ignored importance evidences in relation to my review Application.

To those particulars may be added the following:

2.     The first issue is that the Tribunal incorrectly assessed my credulity or the Tribunal made its findings based on incorrect materials, or the Tribunal ignored importance evidences in relation to my review Application.

6.     An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that effects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia [[1995] HCA 58, 184 CLR 163] per McHugh, Gummow and Hayne JJ at [179]….  It is obviously that the Tribunal, in my case, exceeded its powers and thus committed a jurisdictional error.

During the course of the hearing of this appeal, the Appellant identified the “important evidences” referred to in her particulars as being two statutory declarations, the first of which was affirmed on 24 January 2006, and the latter affirmed on 25 October 2006.  The “wrong issue” was identified as simply being “material which has been substantially challenged”.  The “relevant material” to which reference is made in the particulars was identified as “the genuine Application materials”. 

7                     The second category of particulars is that set forth in the final particular provided in the Notice of Appeal, being:

7.     The second issue is in relation to bias.  In my case the Tribunal did not bring an independent mind to assess my credibility or my claims or my evidences.  Instead, the Tribunal made its findings or assess my credibility based on nothing but its unwarranted assumption.  Therefore, an apprehended bias has been established:  SZILP v MIAC & Anor [2007] FMCA 592… 

To that particular may be added two further contentions, namely:

1.        a contention that the Tribunal was “induced by fraud”; and

2.        a contention that “the interpreter at the hearings made a lot of mistakes and put a lot of mistakes”. 

8                     None of the grounds of appeal have been made out and the appeal should therefore be dismissed.  Each of the purported grounds, it is considered, is but an impermissible attempt to challenge the factual findings as made by the Tribunal.  Each of the particulars has been separately considered, however no appealable error has been demonstrated.

Factual findings: the adverse findings as to credit 

9                     The Tribunal found that the “applicant’s claims in her protection visa Application were fabricated.”  Indeed, the Appellant in her particulars accepts that characterisation of the claim as lodged with the Department. 

10                  However the “fabrication” of the claim as made was by no means the starting point for the Tribunal’s adverse findings as to the Appellant’s credit.  Before both Tribunals the differing version of events was explored.  The first Tribunal conducted two hearings and had written to the Appellant on 3 January 2006, advising her of “inconsistencies between the information you provided in your Application to the Department and the evidence you gave at the hearing”.  A statutory declaration dated 24 January 2006 was then provided by the Appellant to the Tribunal.  The Tribunal as reconstituted wrote a further letter to the Appellant on 11 October 2006, detailing what it considered were “inconsistencies and significant discrepancies” in her evidence and inviting her to comment.  The further statutory declaration dated 25 October 2006 was then provided.

11                  The Appellant has been given every opportunity to explain the manner in which the initial account of facts came to be drafted and submitted to the Department and every opportunity to provide her account of events to the Tribunal.  Differing accounts were, however, given as to how the claim first came to be made.  One account advanced by the Appellant at the first hearing of the Tribunal was that she had not met the migration agent, had never visited or spoken to the agent, and that the agent merely advised her that a claim had been made.  This account, however, was found by the Tribunal to be different in significant respects to subsequent accounts given by the Appellant. 

12                  The Appellant obviously seeks to distance herself from the account as first provided by her migration agent. However the contention that the source of her “problems” lay simply in discrepancies between two discrete factual versions of events, for one of which she is not to be held to account, confronts at least two difficulties, namely:

1.        the fact that the Tribunal found that the Appellant’s account as to how the initial application came to be prepared was not to be accepted; and

2.        the fact that the Tribunal’s adverse findings as to credit were based upon a myriad of other inconsistencies in the evidence provided. 

13                  The Tribunal’s reasons contain the following comments: 

The applicant’s evidence to the department and to the Tribunal contains inconsistencies and significant discrepancies.  The Tribunal does not accept the applicant’s explanations of these inconsistencies and significant discrepancies. 

In her initial Application to the department the applicant claimed she feared returning to China because she was a Christian who practised her religion in an underground church.  However, at the hearing the applicant indicated that these claims were false. 

The applicant has also given inconsistent evidence to the Tribunal about how these claims came to be submitted to the department. …

The Tribunal thereafter set forth the different accounts given at earlier hearings before the Tribunal as previously constituted and an account provided in the statutory declaration relied upon by the Appellant.  The Tribunal continued:

…The Tribunal does not accept the applicant’s evidence that she had no knowledge or involvement in the lodgement of these fabricated claims.  The inconsistencies in the applicant’s evidence about the lodgement of the protection visa application and the fabricated claims with the Department … lead the Tribunal to conclude that she has not given a truthful account of her involvement and as such leads the Tribunal to doubt her credibility more generally.

14                  The Tribunal’s reasons set for a detailed account of the evidence given by the Appellant and detailed many inconsistencies in her evidence.  Those inconsistencies extend well beyond inconsistencies founded solely in the “fabricated” claims as first made to the Department.  As noted in the Tribunal’s reasons:

The Tribunal accepts that the applicant is a citizen of the People’s Republic of China.  She has presented a passport genuinely issued by that government in the name that she claimed to use. 

Other than that fact, the Tribunal does not accept that the applicant has presented a truthful account of her circumstances and activities in her home country to either the Department or the Tribunal. 

Given the inconsistencies recounted in the Tribunal’s reasons, it is not surprising that the claim failed on its merits and not surprising that adverse findings were made as to credit.

15                  The Federal Magistrate also considered the findings made by the Tribunal and formed the view that those findings were open to the Tribunal.  Thus the Federal Magistrates Court decision concludes:

[43] In my view the Applicant has not made out any jurisdictional error.
I am of the view that it is quite clear that the Tribunal's decision was based on its adverse assessment of the Applicant's credibility and credibility is a factual finding. There was, in my view, sufficient evidence from the inconsistencies and discrepancies in the Applicant's evidence to the Tribunal and to the previously constituted Tribunal, from the matters in the Applicant's protection visa application which were brought to the Applicant's attention in the s.424A letter and from the Applicant's statutory declarations in reply to the two s.424A letters that meant that it was open to the Tribunal to form the view of the Applicant's credibility that it did. That was a matter for the Tribunal and it was on the question of the Applicant's credibility or lack thereof that the matter was ultimately decided.

16                  Whether consideration is given to the grounds of appeal as set forth in the Notice of Appeal, the purported particulars there set forth, or to the further elaboration of the case in the Appellant’s Outline of Submissions filed on 16 November 2007, it is considered that the challenge being made by the Appellant to the decision of the Tribunal is a challenge to the findings of fact made by that Tribunal.  That is not the function or purpose of judicial review: see Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 [2003] HCA 30, 198 ALR 59 at 84 per Kirby J.  Nor is jurisdictional error normally exposed by factual error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10, 177 ALR 473.  McHugh J there relevantly observed:

[36] If an administrative tribunal applies a wrong legal test or asks itself or decides a wrong legal question, it may be a short step to concluding that it did not decide the question that it had to decide. But questions of fact are ordinarily for an administrative tribunal to determine and so are the reasoning processes employed to make such findings. Disagreement with a finding of fact or the reasoning process used to find it is usually a slender ground for concluding that a tribunal misconceived its duty.

See also Chey v the Minister Immigration and Citizenship [2007] FCA 871 at [37] per Kenny J.  

17                  Jurisdictional error is not made out by one party seeking to revisit the merits of a decision and expressing disagreement with the findings of fact made by a Tribunal properly acting within the jurisdiction entrusted to it.

Bias or fraud

18                  The allegations advanced by the Appellant have been variously cast.  The Notice of Appeal characterises the contention as “apprehended bias” on the part of the Tribunal.  The Appellant’s Outline of Submissions as filed on 16 November 2007 characterised the contention as being “fraud on third parties”, and reference was there made to SZFDE v Minister for Immigration and Citizenship [2007] HCA 35, 237 ALR 64. 

19                  Allegations of fraud or bias, if they are to be advanced, must be distinctly identified and the facts relied upon identified with precision.  That has not occurred in the present appeal.  Insofar as a contention is made that there is “apprehended bias” it may readily be accepted that a decision-maker may possibly commit jurisdictional error if she fails to have regard to relevant material and that failure may be attributable in some circumstances to a decision-maker making unwarranted assumptions as to a witness’ credibility: see WAGO v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 437, 194 ALR 676.  Lee and RD Nicholson JJ there concluded:

[54] The unwarranted assumptions of the Tribunal as to matters relevant to formation of a view on the credibility of the corroborative witness caused the Tribunal to disbelieve and disregard that evidence and constituted a failure by the Tribunal to duly consider the question raised by the material put before it: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 per Gleeson CJ at [4]. Although the remarks of the Chief Justice in Aala were directed to entitlement to review by constitutional writ on the ground of absence of authority for the Tribunal to make a decision that exercised the decision-making power in a manner that was not procedurally fair, his Honour's comments are equally pertinent to an unauthorised exercise of decision-making power that results from the Tribunal failing to take into account relevant material. In misunderstanding the material before it, the Tribunal thereby failed to have regard to relevant material, resulting in a decision for which the Tribunal had neither authority nor jurisdiction under the Act: [Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, 203 CLR 323]per McHugh, Gummow and Hayne JJ at [82]-[85]. It follows that grounds for review of the Tribunal's decision arise under s476(1)(b) and s476(1)(c) of the [Migration Act 1958 Cth].

20                  The difficulty confronting the Appellant both before the Federal Magistrates Court and this Court is simply the fact that she has not demonstrated that the Tribunal made any “unwarranted assumptions” or that the Tribunal did anything other than make findings of fact open to it upon the evidence presented.  This attack upon the conclusion of the Tribunal and of the Federal Magistrates Court has no merit: cf SZDLA v Minister for Immigration and Multicultural Affairs [2005] FCA 1048 at [46], 221 ALR 164.

21                  Insofar as the Outline of Submissions raises a contention of “fraud”, it is to be rejected.  It is not considered that any case could be made out that the Appellant has been denied the procedural fairness guaranteed by Div 4 of Pt 7 of the Migration Act 1958 (Cth).  The importance of those provisions and the effect that the conduct of a claimant’s agent may have in denying a claimant those procedural protections has been the subject of decision in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35, 237 ALR 64.  The fraudulent conduct of the person there retained, Mr Hussain stultified the operation of the legislative scheme.  Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ there concluded:

[49] The fraud of Mr Hussain had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants. That this is so is manifest by the reasons given by the Tribunal, which included the statement:

The [first] applicant was put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but the applicant has not provided any further information in support of her claims. Nor has she given the Tribunal an opportunity to explore aspects of her claims with her. A number of relevant questions are therefore left unanswered.

The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.

[50] Reference has been made earlier in these reasons to the submission for the Minister that any fraud perpetrated on the appellants was not a fraud "on" the Tribunal. Further, as noted above, Allsop J characterised the complaints of the appellants as not about the process but about their erstwhile agent and concluded that neither the decision nor the statutory process "was corrupted by fraud" [Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142, 154 FCR 365 at 402] However, as in other areas of legal debate, including questions of federal legislative power under the Constitution itself [Grain Pool of Western Australia v Cth (2000) 202 CLR 479 at 492] to say of a law or state of affairs that it bears one legal character does not necessarily deny it a second legal character which is of decisive significance.

[51] No doubt Mr Hussain was fraudulent in his dealings with the appellants. But the concomitant was the stultification of the operation of the critically important natural justice provisions made by Div 4 of Pt 7 of the Act. In short, while the Tribunal undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud of Mr Hussain, it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review. That state of affairs merits the description of the practice of fraud "on" the Tribunal.

No such comparable conclusion can be reached in the present proceedings. 

22                  Any conclusion as to fraud, even assuming that is how the allegation that the agent “cheated” the present Appellant is to be construed, has to be supported by the facts and presumably established according to the standard set forth in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–2 per Dixon J.  There is no sufficient factual foundation for any finding of fraud in the present case.  Any such conclusion is foreclosed by the finding of the Tribunal that it did “not accept the Applicant’s evidence that she had no knowledge or involvement in the lodgement of these fabricated claims.”  Moreover, even if there be fraud on the part of the migration agent, that conduct has not denied the Appellant any opportunity being heard. As observed by Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ in SZFDE, supra:

…there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made [Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142, 154 FCR 365 at 399]. …

23                  The conduct of the migration agent was the subject of inquiry and findings by the Tribunal.  In the present proceedings it is not considered that the conduct of the agent, however it be described, has occasioned prejudice to the Appellant.  Unlike the position in SZFDE, the present Appellant was advised of the hearings before each of the Tribunals and did, in fact, attend: see SZIWV v Minister for Immigration and Citizenship (2007) FCA 1338 at [27]. 

24                  The Appellant further contends that the conduct of the interpreter presumably has denied her the opportunity of properly being heard.  However this contention be characterised there is no evidence in support of it. 

Orders

25                  The orders of the Court are:

1.      The Appeal be dismissed.

2.      The Appellant to pay the costs of the First Respondent assessed in the sum of $4000.

Associate:

Dated:         18 December 2007