FEDERAL COURT OF AUSTRALIA

SZKJU v Minister for Immigration and Citizenship

[2008] FCA 802

Federal Court of Australia Act 1976 (Cth)

Federal Court Act 1974 (Cth)

Judiciary Act 1903 (Cth)

Migration Act 1958 (Cth)

Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558

Allesch v Maunz (2000) 203 CLR 172

Attorney-General (NSW) v Quin (1990) 170 CLR 1

Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547

MZWVH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1016

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419

Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668

SZBYR v Minister for Immigration and Multicultural Affairs [2007] HCA 26

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609

SZJBE v Minister for Immigration and Citizenship [2007] FCA 190

SZJJC v Minister for Immigration and Citizenship [2008] FCA 614

SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198

VFAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102

WABC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 286

WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630

SZKJU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 416 of 2008

GORDON J

30 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the first respondent’s costs fixed in the sum of $1,500.

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 against an order of Federal Magistrate Lloyd-Jones of 6 March 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 13 February 2007.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (“the first respondent”) to refuse to grant a protection visa to the appellant.

2                     The appellant is a citizen of the People’s Republic of China (“China”).  The appellant’s claim for a protection visa was based on his alleged fear of persecution in China due to his involvement with protests by retrenched workers and his imputed anti-Communist Party views.  The appellant claimed he was forced to leave his work unit in the Electrical Switch Factory of Kaifeng City in July 2002 due to financial problems faced by the factory.  He received an allowance from the factory for six months following his redundancy but no further payments were received.  In July 2003, about 400 former employees of the factory gathered in front of the factory and local government to seek some form of redress.  The following day, the appellant allegedly organised a protest of 40 people in Kaifeng City.  Subsequently, on 23 August 2003, they allegedly organised a larger protest by distributing propaganda material.  That protest involved 1,000 people, public speeches and the distribution of propaganda material.  According to the appellant, following the protest he was questioned by the Public Security Bureau (the “PSB”) on 28 August 2003 and then subsequently a further five or six times.  The appellant stated that he and another person planned a much larger public demonstration but the appellant and that other person were subject to interrogation in October 2003.  The protest was postponed to January 2004.  However, he alleged that the planned protest came to the attention of the authorities and the PSB started to investigate the organisers.  The appellant alleged that he was listed as a suspect by the PSB and, consequently, the appellant decided to leave the country.

PROCEDURAL HISTORY

3                     The appellant arrived in Australia on 24 February 2004.  On 5 March 2004, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.  The first respondent refused the application for a protection visa on 1 June 2004.  On 1 July 2004, the appellant applied to the Tribunal for a review of that decision.

4                     The first Tribunal affirmed the first respondent’s decision on 7 December 2004.  This decision was quashed by the Federal Magistrates Court (“the FMC”) on 8 December 2005 and remitted to the Tribunal.

5                     On 4 April 2006, a differently constituted Tribunal affirmed the first respondent’s decision.  On 6 September 2006, the decision of the second Tribunal was itself quashed by consent and remitted by the FMC to the Tribunal for decision according to law.

6                     On 10 January 2007, the appellant appeared before a differently constituted Tribunal.  On 12 January 2007, the Tribunal invited the appellant to comment on information particularised in the letter that was relevant to his credibility.  The letter drew the appellant’s attention to inconsistencies between the appellant’s claims as presented in his application for a protection visa and the three Tribunal hearings. 

7                     On 13 February 2007, the Tribunal affirmed the decision under review.

8                     The Tribunal did not accept that the appellant was a credible and truthful witness.  It referred to numerous inconsistencies in the appellant’s evidence as provided in his protection visa application and at the three Tribunal hearings.  Those inconsistencies related to his addresses in China; key dates; police activity directed towards him; and his interrogation.  The Tribunal also found the appellant’s account of the speed with which the authorities took action against him incompatible with country information suggesting that the reaction would have been swifter.  It stated that:

Even making allowances for any impact that [the appellant’s] unsettled mood or condition might have had on his oral evidence at the third hearing, [the appellant] has provided no satisfactory explanations for the contradictions between his written claims and his oral evidence at the first two hearings, as well as the inconsistencies between aspects of his oral evidence at the first and second hearings.

9                     As it did not accept that the appellant was a witness of truth, the Tribunal did not accept the appellant’s account of his protest activities in China or of the consequential harm suffered.  Nor did it accept that he held a well-founded fear of future Convention-related persecution, and accordingly dismissed his claim.

THE COURT BELOW

10                  On 20 March 2007, the appellant applied to the FMC for review of the Tribunal’s decision. This appeal was unsuccessful. 

11                  Before the Federal Magistrate, the appellant raised three grounds in his amended application:

1.                  The Tribunal incorrectly made an adverse credibility finding by misunderstanding the appellant’s evidence and failing to consider his essential claims;

2.                  The Tribunal failed to comply with s 424A(1) of the Migration Act 1958 (“the Act”);

3.                  The Tribunal failed to properly and fairly consider his claims.

12                  The Federal Magistrate accepted the first respondent’s submission that the Tribunal’s findings as to the appellant’s credibility subsumed the entirety of the appellant’s claims ([12] and [13]).  His Honour also accepted that there was no evidence from which to infer that the determinative issues were not put to the appellant at the third Tribunal hearing of 10 January 2007 or that the issues raised during that hearing were different to those raised in the s 424A letter of 12 January 2007.  The Tribunal considered the appellant’s response to the issues raised but was not satisfied with the proffered explanations.  In these circumstances, the fairness of the Tribunal’s findings of fact was not open to review by the Court: Attorney-General (NSW) v Quin (1990) 170 CLR 1.  Nor were its appraisals of credit “information” for the purposes of s 424A(1): SZBYR v Minister for Immigration and Multicultural Affairs (2007) 235 ALR 609.  His Honour also noted that the mere fact that the Tribunal had concerns about the appellant’s credibility did not indicate that it approached the issues with a lack of good faith or a closed mind.

13                  His Honour accordingly dismissed the matter on the grounds that no jurisdictional error on the part of the Tribunal was disclosed.

PRELIMINARY MATTERS

14                  The appellant seeks prerogative relief of the kind issued in the exercise of the Court’s original jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth) (as reflected in s 476A of the Act and the limited grant of original jurisdiction under that provision).  This proceeding is an appeal from a decision of the FMC under s 25(1AA) of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”).  The appeal is in the nature of a rehearing and not an appeal in the strict sense:  Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507.  The question on appeal is whether the decision of the Federal Magistrate is affected by some legal, factual or other error:  Allesch v Maunz (2000) 203 CLR 172 at [23].  Section 28(1) of the FCA Act provides that, on appeal, the Court may affirm, reverse or vary a decision of the FMC and make such judgment or order as in all of the circumstances is appropriate, including that the decision of the Federal Magistrate be set aside and the proceeding remitted to the Tribunal for further determination. 

15                  For reasons outlined below, I am not satisfied that the decision of the Federal Magistrate is affected by any error, whether as alleged or at all.

GROUNDS OF APPEAL

16                  The notice of appeal filed on 27 March 2008 raised the following grounds:

GROUNDS

·        The learned Federal Magistrate erred in law;

·        The learned Federal Magistrate was wrong in finding that the … Tribunal acted properly in its findings.

Particulars

1.         In the Tribunal’s decision, I have found that the Tribunal has completely misunderstood my evidences (sic) or information mentioned above; failed to consider my above-mentioned essential claims; failed to identify and consider the relevant issues to be determined; and as a result, the Tribunal has incorrectly assessed my credibility.

2.         The Tribunal failed to comply with its obligation under s 424(1) of the Act honestly and faithfully.

3.         The Tribunal failed to consider my claims, properly and fairly.

ANALYSIS

17                  The Notice of Appeal filed in this Court is a reproduction of the application filed in the FMC (see [10]ff above) and merely asserts that the Court below erred in law and was wrong. 

18                  The appellant must demonstrate that the judgment under appeal is a consequence of some legal, factual or discretionary error: Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 at [4]; MZWVH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1016 at [10]; SZJJC v Minister for Immigration and Citizenship [2008] FCA 614 at [13]-[15].  That is the ambit of the Court’s appellate jurisdiction: s 24 of the FCA Act.  The appellant did not attempt to demonstrate any arguable error in the reasons of the Federal Magistrate.  For the reasons outlined below, I cannot identify an appellable error.  An appeal would have no prospects of success.

Ground 1 - The Federal Magistrate misunderstood the appellant’s claims

19                  The Tribunal did not misunderstand the appellant’s claims.  It found that his claims were not credible based on discrepancies between the appellant’s claims and his testimony given over three separate hearings before the Tribunal.  Those discrepancies provided a rational basis for the Tribunal’s adverse credibility finding.  The Court cannot review that finding - it is a finding of fact open on the material before the Tribunal: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 552 and 559; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]. 

20                  Moreover, that finding subsumed the entirety of his claims.  In those circumstances, the Tribunal was not obliged to make findings in respect to every factual contention raised by the appellant: Durairajasingham 168 ALR 407 at [67]; see also Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68], [73]-[74] and [91]; WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47]; Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79].

21                  This ground of appeal is without foundation and should be dismissed. 

Ground 2 - The Tribunal failed to comply with its obligation under s 424(1) of the Act honestly and faithfully

22                  As noted earlier, the reason for the Tribunal’s decision was its appraisal of the appellant’s credibility.  Section 424A(1) does not require the Tribunal to put its appraisals of the appellant’s credit to him because those appraisals are not “information”: SZBYR 235 ALR 609 at [18]. 

23                  Further, the matters that formed a basis for the credibility findings were taken from his testimony before the Tribunal and were therefore excluded by reason of s 424A(3)(b): NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 at [41]-[64]; SZJBE v Minister for Immigration and Citizenship [2007] FCA 190 at [16].  In any event, there was no error in sending the s 424A letter after the hearing: SZKLG v Minister for Immigration and Citizenship (2007) 164 FCR 578 at [34].

24                  This ground of appeal is also without foundation and should be dismissed.

Ground 3 - The Tribunal failed to consider my claims, properly and fairly

25                  As the first respondent submitted, the Court should not entertain a challenge to the fairness of findings made by a Tribunal or its consideration of the appellant’s credibility.  These are matters of fact for the Tribunal.  The Court should only consider whether the decision was made under the Act: ss 474 and 476A; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36; Durairajasingham 168 ALR 407 at [67]; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].

26                  This ground of appeal is somewhat difficult to conceptualise.  To the extent that this ground asserts a claim of bias, a party alleging actual bias on a decision maker’s part carries a heavy onus and it must be clearly proved: Jia Legang 205 CLR 507 at [35], [71] and [72].  A case of bias is seldom made out by reference solely to the reasons for decision and no inference of bias or prejudgment can be drawn from the mere fact of adverse findings in the reasons for decision: VFAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 286 at [3].

27                  Further, it does not appear to be a claim of apprehended bias.  Even if it was a claim of apprehended bias, it would fail.  It would fail because it is not sufficient for the appellant to have a “vague sense of unease or disquiet” about the manner in which the decision was made (Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424).  Rather, it would require the possibility that “a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct” could form an apprehension of bias: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at 426.  There is no basis for such an allegation in the present case.

28                  Finally, at the hearing, the appellant stated that the fact that there had been three Tribunal hearings established, or at least supported, his contention that he was a refugee entitled to a protection visa.  That submission is rejected.  To take just one example, on 6 September 2006, the decision of the second Tribunal was quashed by consent.  The order of the Court noted that the First Respondent accepted that the application had to be allowed for the reasons contained in the Full Court decision of SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2.  There is no basis for contending, whether as alleged or at all, that the fact that the appellant has attended three separate Tribunal hearings itself provides support for his claim for refugee status.

CONCLUSION

29                  I would dismiss the appeal and order the appellant to pay the first respondent’s costs of the appeal fixed in the sum of $1,500.

Associate:

Dated:         30 May 2008