FEDERAL COURT OF AUSTRALIA

SZLEP v Minister for Immigration and Citizenship [2008] FCA 765

SZLEP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 390 of 2008

COWDROY J

26 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The Appellant pay the costs of the First Respondent in the amount of $1,900 pursuant to O 62 r 4(2)(c) of the Federal Court Rules.

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

REASONS FOR JUDGMENT

1                          The appellant appeals from the decision of Federal Magistrate Cameron delivered on 6 March 2008 which dismissed an application for judicial review of the decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 12 July 2007. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) not to grant the appellant a Protection (Class XA) visa (‘the protection visa’).

BACKGROUND

2                          The appellant is a citizen of the People’s Republic of China (‘the PRC’) who arrived in Australia on 25 January 2007. On 2 February 2007 the appellant lodged an application for the protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused such application on 24 February 2007. On 29 March 2007 the appellant applied to the Tribunal for a review of the delegate’s decision.

3                          The appellant claimed to have well-founded fear of persecution resulting from her practice of Falun Gong. The appellant claimed that she became a member of Falun Gong in 1998 and became a ‘very senior member’ within four months. After the PRC government banned Falun Gong in 1999 the appellant claimed that she and other members petitioned for Falun Gong. She claimed that as a result of such petitioning the PRC government subjected her to ‘physical torture’. The appellant claimed that she was forced to attend numerous ‘brain washing classes’. The appellant claimed that because of this persecution she ‘dared not get married’ for fear that her future husband and family members would also suffer persecution resulting from her practice of Falun Gong.

THE TRIBUNAL DECISION

4                          The appellant attended a hearing before the Tribunal on 10 May 2007 and indicated that she had been assisted by someone in the preparation of the protection visa application. The appellant told the Tribunal that there may be some inaccuracies in the protection visa application as the person who helped her was ‘not a professional and not an interpreter’.

5                          On 18 May 2007 the Tribunal pursuant to s 424A of the Migration Act 1958 (Cth) (‘the Act’) sent a letter to the appellant identifying apparent inconsistencies between the protection visa application and the evidence she provided at the hearing before the Tribunal (‘the s 424A letter’). On 12 June 2007 the appellant responded to the s 424A letter.

6                          While the Tribunal accepted that there ‘may have been problems’ associated with the translation of the protection visa application, it did not accept that such translation problems would result in ‘most aspects of the application’ being inaccurate.

7                          The Tribunal found the appellant was not a credible witness. The Tribunal found that the appellant possessed only a ‘very superficial’ knowledge of Falun Gong and had ‘very limited contact’ with Falun Gong practitioners in Australia. The Tribunal was not satisfied that the appellant had practised Falun Gong in the past or that she would do so in the future. Accordingly, the Tribunal was not satisfied that the appellant had been detained and suffered persecution as a result of her practice of Falun Gong.

8                          The Tribunal was not satisfied that the appellant had well-founded fear of persecution for any Convention Relating to the Status of Refugees 1951 (‘Convention’) reason. The Tribunal affirmed the delegate’s decision to refuse to grant the protection visa to the appellant.

APPLICATION IN THE FEDERAL MAGISTRATES COURT

9                          By application filed in the Federal Magistrates Court of Australia on 14 August 2007 the appellant sought judicial review of the Tribunal’s decision. An amended application was filed on 5 November 2007 which raised three grounds of review as follows:

1.    The Tribunal had bias against me and did not consider the information provided in response of the s 424 letter. Especially the explanation about the translation errors. The Tribunal failed to consider my application according to law;

2.    The Tribunal failed to consider the claims of my application, the Tribunal misunderstood my claims;

3.    The Tribunal failed to assess the chance of my persecution on my return to China.

10                        Federal Magistrate Cameron observed that the appellant’s first ground of review had three elements. In considering bias his Honour noted that an allegation of bias must be supported by clear and cogent evidence. Cameron FM found that the appellant’s allegation was not supported by any evidence and that there was nothing in the Tribunal’s decision to suggest that the Tribunal had been biased against the appellant.

11                        In considering the appellant’s allegation that s 424 of the Act had been breached, the Federal Magistrate noted that the fact that the appellant’s response to the s 424A letter had not been referred to in the Tribunal decision did not mean that such response had not been considered. His Honour found that the information in the appellant’s response to the s 424A letter had been considered but had not been accepted by the Tribunal.

12                        The third limb of the appellant’s first ground of review alleged that the Tribunal had failed to consider the appellant’s application according to law. The Federal Magistrate found that such allegation had no merit. His Honour rejected the first ground of review.

13                        The Federal Magistrate considered the appellant’s second ground of review and found that the Tribunal had understood and considered the appellant’s claims. His Honour accordingly found that the ground of review had not been made out.

14                        Cameron FM considered the appellant’s third ground of review and found that the Tribunal had understood the appropriate test and applied it without error. His Honour accordingly rejected such ground.

APPEAL TO THIS COURT

15                        On 20 March 2008 the appellant filed a notice of appeal in this Court which raised two grounds of appeal as follows:

1.         The Tribunal had bias against me and refused to accept some explanation in reply to the s 424A letter. The Tribunal did not accept my explanation about the translation error because the Tribunal’s bias against me. The Tribunal questioned my credibility because of my mentioning of the translation error at the very beginning.

2.         The Tribunal’s decision to refuse my application was not supported by sufficient independent information and evidence.

FINDINGS

16                        The first ground of appeal contains two contentions. The first contention alleges that the Tribunal was biased because it did not accept the information contained in the appellant’s response to the letter sent by her on 12 June 2007 in response to the s 424A letter.

17                        No evidence has been submitted in support of the claim of bias and the mere fact that the Tribunal did not find the details contained in her letter such as to convince the Tribunal of the veracity of her claims is not sufficient to constitute bias. In SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 the Full Court said at [16]:

It is likely to be a rare and extreme circumstance that a lack of good faith on the part of the administrative decision-maker will be apparent by reference only to the reasons for the decision themselves…

18                        The appellant’s allegation of actual bias asserts that the decision has been made by pre-determination: see Dickason v Edwards and Others (1910) 10 CLR 243 at 260. In The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 the High Court said at 263:

If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision.

19                        However, such allegation of bias must be distinctly made and clearly proved: see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531. Nothing has been submitted by the appellant to justify an allegation of actual bias in these proceedings.

20                        The second part of the first ground of appeal claims that the Tribunal should not have doubted the appellant’s credibility in view of her statement that there might have been translation errors. However, matters of credibility are solely for the Tribunal to determine and this Court is not empowered to review or to assess findings of fact: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]; Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 391-392; and Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 40-42.

21                        The Tribunal’s findings record the appellant’s claims and record that it rejected such claims on the ground that the appellant was not a credible witness. There is no evidence to suggest that in making such findings the Tribunal fell into jurisdictional error. Accordingly ground one of the notice of appeal is rejected.

22                        As to ground two of the appellant’s notice of appeal, the appellant claims that the Tribunal’s decision was not supported by sufficient independent information and evidence. Since this ground was not raised before the Federal Magistrate, leave is required to raise such ground: see Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22]-[24]. In deciding whether leave should be granted, the relevant principle to be applied by the Court is whether it is expedient and in the interests of justice to allow the ground to be argued: see Iyer at [16]. Such consideration requires the Court to consider the merits of the ground raised: see Iyer at [24].

23                        The appellant was required to satisfy the Tribunal of her claims but if she failed to do so the application could not succeed: see Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187]. Gummow and Hayne JJ said at [187]:

The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.

24                        The Tribunal’s decision records the claims of the appellant and its conclusion that it was not satisfied that she had practised Falun Gong in the past or that she would do so in the future. The Tribunal also found that the appellant was not a credible or truthful witness. It noted that the appellant was able to leave China without difficulty which indicated that she was not of interest to the Chinese authorities at the time of her departure for Australia. Based upon these facts the Tribunal concluded that the appellant was not a person to whom Australia owed protection obligations pursuant to the Convention.

25                        Such findings of fact were open to the Tribunal on the evidence before it and there is no apparent jurisdictional error.For this reason the Court is satisfied that it is neither expedient nor in the interests of justice to grant leave to the appellant to raise the second ground contained in the notice of appeal.

26                        No error is apparent in the decision of either the Tribunal or the Federal Magistrate. It follows that the appeal should be dismissed with costs.

Associate:

Dated:         26 May 2008