FEDERAL COURT OF AUSTRALIA

SZIJL v Minister for Immigration and Citizenship [2008] FCA 665

SZIJL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 9 of 2008

RYAN J

14 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the first respondent’s costs, fixed in the amount of $3,100.

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 orders made by Federal Magistrate Lloyd-Jones on 14 December 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 29 September 2006.  The Tribunal had affirmed a decision of a delegate of the first respondent (“the Minister”) to refuse to grant a protection visa to the appellant.

Background

2                          The appellant is a citizen of the People’s Republic of China and arrived in Australia on 13 August 2005.  On 12 September 2005 the appellant filed an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (as it was then known).  A delegate of the Minister refused the application for a protection visa on 24 October 2005. 

3                          On 21 November 2005 the appellant filed an application in the Tribunal for a review of the delegate’s decision.  On 31 January 2006 the Tribunal affirmed the decision of the delegate of the Minister (“first Tribunal’s decision”).  On 9 June 2006, Smith FM made orders quashing the first Tribunal’s decision, and remitting the matter to the Tribunal for reconsideration and determination in accordance with law.

Proceeding before the Tribunal

4                          The Tribunal invited the appellant to attend a hearing on 31 August 2006.  On 3 August 2006 the appellant filed a statutory declaration with the Tribunal, and also provided the Tribunal with further documents.  On 31 August 2006 the appellant attended a hearing before the Tribunal and gave evidence in relation to the claims in his application.

5                          The appellant claimed to fear persecution in China due to his political opinion.  According to the appellant, he had been involved in the 1989 pro-democracy movement and had endured “continuing problems” as a result of which he again came to the attention of the authorities in about 1998 after he had published human rights materials on the internet.  The appellant claims that from an internet café in Kunming he posted on an internet site various articles exposing government corruption in relation to water pollution and in December 2004 plain clothes police apprehended him and took him to the National Security Bureau where he was questioned for a period of three days.  He claims that he was verbally and physically abused and detained until late April 2005.  The appellant claims that upon his release his father obtained a passport and visa for him through “illegal channels” which enabled him to travel from China to Australia on 12 August 2005, via Hong Kong.

6                          Between the two Tribunal hearings, the appellant changed his personal details and claimed to have initially used a pseudonym in order to avoid persecution.

7                          In accordance with s 424A(1) of the Migration Act 1958 (Cth) (“the Act”) the Tribunal sent a letter dated 4 September 2006 inviting the appellant to comment on information that would be a reason or part of a reason for deciding that the appellant was not entitled to a protection visa.  On 18 September 2006 the appellant filed with the Tribunal a further statutory declaration of the same date.

8                          On 29 September 2006 the Tribunal handed down its decision affirming the decision of the delegate of the Minister (“the second Tribunal’s decision”).   The Tribunal was not satisfied that the appellant was a witness of truth.  It was not satisfied that he was either of the persons identified in his travel documents and did not accept that his real identity papers had been seized by the Chinese authorities.  Nor did it accept his account of having gone into hiding.  As well, it regarded the alleged consequences of his having distributed material on the internet as inconsistent with information obtained from independent sources regarding PRC internet policies.  The Tribunal also found that the appellant had been in steady employment which in itself was inconsistent with his claim to have been of interest to the authorities by reason of his pro-democracy activities.  Due largely to its finding on credibility, the Tribunal did not accept the appellant’s claims and did not accept that he held a well-founded fear of persecution for a Convention reason.

Proceedings in the Federal Magistrates Court

9                          On 22 November 2006 the appellant filed an application in the Federal Magistrates Court seeking judicial review of the second Tribunal’s decision. 

10                        Before Lloyd-Jones FM the appellant claimedthat the Tribunal had committed jurisdictional error, including procedural errors denying him natural justice.  The learned Federal Magistrate, in considering the Tribunal’s decision in light of the claims made by the appellant, held that its findings on the appellant’s credibility had been open on the material before it.  The Tribunal’s findings were not perverse, otherwise unreasonable or contrary to the probative material before it: Australian Broadcasting Tribunal v Bond (2002) 214 ALR 264;  NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (1990) 170 CLR 321.  His Honour found that the Tribunal had not been in breach of s 424A or s 425, and noted that the Tribunal’s appraisal of the appellant’s credit was not information for the purposes of s 424A(1) of the Act.

11                        The application listed eight further particulars which were general in nature, several of which overlapped with other grounds.  In dealing with these, his Honour made general observations that the Tribunal’s findings had been open to it on the evidence and not otherwise perverse.  His Honour reiterated his earlier view of the applicability of s 424A of the Act, noting that country information is excluded by s 424A(3)(b) from the operation of s 424A(1).  Moreover, he found no evidence to substantiate an imputation of bad faith to the Tribunal member.  Nor, in his view, was the Tribunal under an obligation to make additional enquiries.  Finally, the learned Federal Magistrate found that the Tribunal had been under no obligation to invite the appellant to a second hearing, and that it had discharged the obligations identified in SZBEL v Minister for Immigration and Multicultural Affairs (2006) 231 ALR 592 in relation to procedural fairness.

12                        On 14 December 2007 the learned Federal Magistrate dismissed the application with costs. 

The proceedings in the Federal Court

13                        On 4 January 2008 the appellant filed in this Court a notice of appeal from the orders made by the learned Federal Magistrate on 14 December 2007.  The notice of appeal lists the following two grounds of appeal:

‘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.’

The grounds of appeal are particularised within the notice of appeal.  The relief sought by the appellant as listed in the notice of appeal is;

‘1.        That the decision be set aside.

2.         The matter be remitted to the differently constituted Refugee Tribunal for determination accordance with the law.

3.         An order that the respondent pay the costs of this application.

4.         Such further or other order as the Court sees fit.’

14                        On 11 February 2008 Deputy District Registrar Farrell made a direction that the appellant file and serve written submissions within five clear working days of the hearing of the appeal, unless otherwise directed.  The appellant has not filed any written submissions, and has failed to comply with this order.  However, he had in his possession on appearing before the Court today, the Chinese text of a written submission, a translation of which he claimed had been forwarded to the Court and which, he suggested, must have been lost in the post.

15                        The appellant was permitted to read from that submission and a translation of it was afforded to the Court and to Counsel for the Minister by the interpreter appointed to assist the appellant.  By that submission the appellant argued, in essence, that the key issue before the Tribunal had been that going to his identity.  He claimed that his identification card had been issued by the Public Security Bureau (“PSB”) in China, which imposes very strict conditions and protections against fraud in the issue of identity documents of that kind.  The appellant claimed that there are many means of proving, even in Australia, the authenticity of such a document. 

16                        He further complained that the Tribunal had undertaken no investigation, but had assumed that his identification document had been forged.  That assumption, he claimed, had been made unfairly.  He attributed to the Federal Magistrates Court the view that there was no need for an inquiry to be undertaken by the Tribunal.  However, the appellant contended, the Tribunal had refused to accept what he said was his true name.  He contended that Australian law does not permit the Tribunal to refuse an application, such as his, on an unfounded assumption.  He further indicated that the rest of his case had been submitted to the Federal Magistrates Court.  He claimed that his actual identity document had been retained by the Department and had not been examined by the Tribunal. 

17                        In relation to the appellant’s claim that the Tribunal had a duty to investigate the authenticity of his identity card, Counsel for the Minister submitted that there is no obligation on the Tribunal to conduct such an inquiry;  see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12, at [1] and [42]-[43].  Ms Clegg of Counsel for the Minister further submitted that the learned Federal Magistrate had not erred in finding that the Tribunal had not contravened s 424A of the Act.  The appellant’s identity was referred to in the letter dated 4 September 2006, sent by the Tribunal pursuant to s 424A.  That letter recited, amongst other things;

‘You travelled to Australia with a false passport.  Other than an ID, you have provided no other documents to the Tribunal to reveal your true identity.  Independent evidence obtained by the Tribunal indicates that Chinese documents are easily manufactured. 

In your PVA and evidence to T2 [sic;  sc. T1], you provided the same names of your wife and one son, whereas in your PVA and evidence provided to T2, you gave completely different names for your parents.’

18                        Ms Clegg further pointed out that the appellant’s response to that letter did not allay the Tribunal’s concerns about his identity, or his credibility.  In relation to the appellant’s allegation of apprehended bias against the Tribunal, the Minister submitted that the appellant was essentially seeking to re-agitate the Tribunal’s factual findings.  According to the Minister, the test of whether a fair-minded lay observer would apprehend bias on the part of the Tribunal requires something more than mere disagreement with the Tribunal’s factual findings or manner of analysis;  see Re Minister for Immigration and Multicultural Affairs Ex Parte Epeabaka (2001) 179 ALR 296, at [15], [53]-[65] and [89]-[95];  Re Refugee Review Tribunal Ex Parte H (2001) 179 ALR 425, at [31];  NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264, at [21].

Consideration of the appeal

19                        The essential question of fact for the Tribunal was whether the appellant had a well founded fear of persecution in China, by reason of his pro-democracy activities.  The Tribunal had regard to the uncertainty and confusion surrounding the appellant’s identity and the conceded falsification of his travel documents in evaluating the credibility of his testimony directed to the essential question as I have just identified it.  That was an approach open to the Tribunal in the exercise of its fact-finding function.  It is not to the point whether the same approach would have commended itself to this Court or to the Federal Magistrates Court, if either Court had been exercising the fact-finding jurisdiction entrusted by the Act to the Tribunal.  The Tribunal, I consider, fully evaluated the substantive claims made by the appellant.  Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 is clear authority to the effect that the Tribunal is not obliged to investigate in the way suggested by the appellant the subsidiary question of the authenticity of the appellant’s identity documents.

20                        I am not persuaded that there was any error by the Tribunal in its communication with the appellant pursuant to s 424A of the Act.  The allegation of apprehended bias was not pressed on the hearing of the appeal and, in any event, by contrast with NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264, that allegation has not been made out on the material.  It follows that, like the learned Federal Magistrate, I have been unable to discern any jurisdictional error by the Tribunal and this appeal must be dismissed with costs. 

21                        In the circumstances, having regard to the order for costs made in the Federal Magistrates Court and the matters canvassed in the affidavit of Bernadette Marie Rayment, sworn 14 May 2008, I shall order that the costs, which I just indicated should be paid by the appellant, be fixed in the sum of $3,100.

Associate:

Dated:         15 May 2008