FEDERAL COURT OF AUSTRALIA

SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145

Migration Act 1958 (Cth) s 91R(3), 424A, 425

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

MZXHY v Minister for Immigration and Citizenship[2007] FCA 622

Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982

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

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

SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214

SZJMG v Minister for Immigration & Anor [2008] FMCA 413

SZJMG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 587 of 2008

MCKERRACHER J

8 august 2008

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant is to pay the costs of the appeal, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                    This is an appeal from a judgment of a Federal Magistrate delivered on 7 April 2008 (SZJMG v Minister for Immigration & Anor [2008] FMCA 413).  By that decision his Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) delivered on 11 September 2007.  The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.  

2                    The appellant is a citizen of China.  He arrived in Australia on 18 February 2006.  On 10 March 2006 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship (the Department).  A delegate of the first respondent refused the application for a protection visa on 6 April 2006.  On 9 May 2006 the appellant applied to the Tribunal for a review of that decision.  On 22 August 2006 the Tribunal affirmed the delegate’s decision.  On appeal, on the basis of non-compliance with s 424A (following SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214), the decision was quashed by consent order of Stone J on 2 May 2007 and remitted to the Tribunal differently constituted for review according to law. 

3                    The Tribunal on the second hearing on 11 September 2007 also refused to grant the appellant a protection visa. 

THE APPELLANT’S CLAIMS

4                    The appellant claims to fear persecution in China due to his Catholic faith and his membership of an underground Catholic church. 

5                    In the course of several opportunities for his claims to be considered, the appellant has made a significant number of contentions.  The first was in his protection visa application; then, in the first Tribunal hearing on 11 July 2006; next, in written submissions to the Tribunal on 20 July 2007; then, in the second Tribunal hearing on 23 July 2007; and in further correspondence sent after the second hearing.  This material has been summarised very accurately and in detail by the learned Federal Magistrate in [8]-[14] inclusive of his Honour’s reasons. 

BEFORE THE TRIBUNAL ON THE SECOND OCCASION

6                    The Tribunal was not satisfied that the appellant is a person to whom Australia owed protection obligations under the Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (the Convention).  It did not find the appellant’s account of events in China credible due to inconsistencies and omissions in claims made in his application to the Department and at the two Tribunal hearings.  Given the appellant’s apparent lucidity in recalling certain events, the Tribunal did not accept the suggestion that the inconsistencies and omissions could be explained by memory loss, either from an industrial gas accident or from being tortured.  Indeed the list of inconsistencies relied upon by the Tribunal and summarised by the learned Federal Magistrate in his reasons SZJMG [2008] FMCA 413 at [15] is extensive.  The second Tribunal decision (almost 30 pages) is detailed, careful and comprehensive. 

7                    The appellant’s level of knowledge of the Catholic faith was, in the view of the Tribunal, not commensurate with that to be expected of someone who had been brought up in a Catholic household and who had practised in a Catholic underground church.  Given that the appellant had been in Australia for five months at the time of the first Tribunal hearing and at that stage there was no evidence that he had attended any Catholic church or joined a Catholic community in Australia, the Tribunal did not accept that the appellant had attended church until the period just prior to the first hearing.  

8                    However, the Tribunal did accept that the appellant, by the time of the second hearing, attended church services and that his knowledge of Catholic principles had improved.  Nevertheless, in light of the inconsistencies and omissions in his various versions of events, the Tribunal found that the appellant had not been truthful.  It found that he had not had commitment in China to Christianity in the manner asserted by him.  Consequently, the Tribunal was not satisfied that the appellant engaged in religious activities in Australia otherwise than for the purpose of strengthening his claim to be a refugee and therefore disregarded this conduct in accordance with s 91R(3) of the Migration Act 1958 (Cth) (the Act).

9                    Accordingly, the Tribunal was not satisfied that the appellant would be attracted to an underground church if he were to return to China and it found that there was no chance that he would suffer serious harm for reason of his religion.  Taking into account its general concerns about the appellant’s credibility, the Tribunal also rejected the appellant’s claims relating to other past persecution in China.  In all the circumstances it did not accept that he held a well-founded fear of persecution in China if he was to return.

ON REVIEW BY THE FEDERAL MAGISTRATES COURT

10                Before the learned Federal Magistrate, the appellant claimed that the Tribunal had committed jurisdictional error, had shown bias, denied him procedural fairness and had breached s 424A of the Act.

11                His Honour noted that the Court was unable to provide the appellant with a merits review of the Tribunal decision.  To the extent that the appellant alleged bias on the part of the Tribunal, his Honour was unable to discern any evidence in support of such an allegation.  Nor was there any material to support a breach of the procedural fairness requirements of Div 4 Pt 7 of the Act. 

12                Noting that the Tribunal was not required to put to the appellant any doubts which it might have regarding an applicant’s evidence (see SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [18]), his Honour nevertheless found that the Tribunal by forwarding a s 424A letter to the appellant setting out the various inconsistencies on which it relied, had discharged its obligations under the section.

13                The learned Federal Magistrate further found that a document in Chinese script and dated 7 September 2005 which was tendered in Court and received subject to relevance, could not assist the appellant’s claims.  I will refer to this further below. 

14                As his Honour was unable to discern any jurisdictional error in the Tribunal decision, he dismissed the application for review.

GROUNDS OF APPEAL

15                The notice of appeal raises the following grounds which claim, inter alia, that:

1.                  The Tribunal was biased;

2.                  The Federal Magistrate did not allow the appellant a chance to provide more documentary evidence; and

3.                  The Federal Magistrate did not reasonably consider the application for review. 

16                Although the first ground is directed against the Tribunal rather than the Federal Magistrates Court, for the purpose of this appeal, it will be considered as alleging a failure on the part of the Federal Magistrates Court to identify bias in the Tribunal. 

17                The notice of appeal is supported by an affidavit filed 28 April 2008 in which the appellant says:

My application for a protection visa was refused by DIAC and RRT and I found jurisdictional error with RRT.  I lodged my application to be reviewed at Federal Magistrate Court.  The judge did not consider all information provided at my Hearing. I have no chance to provide more evidence and my case was dismissed.

18                At the hearing of the appeal before me the appellant submitted strenuously that he was a devoted member of the Catholic faith.  He relied upon the same grounds as were argued before the learned Federal Magistrate but placed particular emphasis on the fact that he had provided to his advisor a document which was said to be a photocopy of an arrest warrant which he says his advisor allegedly failed to produce to the second Tribunal hearing. 

19                The learned Federal Magistrate dealt with this new issue as follows:

26.       The applicant tendered, subject to a finding of relevance, a document which he expressed to be an arrest warrant in which he and his father were named and which referred to their Christian practices. It appears that the document may have been dated 7 September 2005. The document was in Chinese script and not accompanied by a translation but to the limited extent that it was legible it was orally translated at the hearing by the Court appointed interpreter. The applicant submitted that he had given this document to his adviser but was unsure whether it had been supplied to the Tribunal. He submitted that it demonstrated that his claims of persecution were genuine.

27.       On consideration, I cannot conclude that the document has any relevance to these proceedings. It was not ultimately demonstrated that the document had been supplied to the Tribunal and it was not alleged that any fraud had been committed by the applicant’s adviser in the event that the document had not been submitted to the Tribunal. In the circumstances, the document cannot assist the Court in its consideration of the matters raised for judicial review.

28.       Moreover, the only issue to which the document may go is whether the Tribunal reached a correct conclusion on the merits of the applicant’s application. As merits review is not available in these proceedings, the document can have no relevance to the matters which the Court must consider.

20                There is no indication in the transcript of the Tribunal hearing or any other record, that this document was ever put before the Tribunal.  There is also no indication either that any request was made to the Tribunal for it to consider the document.  The document has not been translated and its content is uncertain.  To the extent it could possibly be taken as a suggestion that it was an arrest warrant for the appellant’s father, that contention does not sit well with the evidence the appellant gave before the Tribunal that his parents had never been in trouble with the authorities.  There is no indication or evidence supporting any negligence or fraud on the part of the appellant’s migration agent.  All indications would appear to be to the contrary as the appeal book shows a substantial amount of activity having been conducted on behalf of the appellant by the migration agent.  But, in any event, if all of this were wrong, it does appear to me that the learned Federal Magistrate was correct in saying that it was neither open to the Federal Magistrates Court (any more than it would be open to this Court) to receive fresh evidence going only to the merits.  The document can only be relevant to the finding as to any real risk of suffering harm for reasons of his religion or for any other reason.  While it may theoretically be arguable or conceivable that this document should have been brought to the attention of the Tribunal or at least the content or the substance of the document raised with the Tribunal at an earlier time, its receipt now is only capable of going to a merits review on the fear of persecution point. 

21                In this regard, no fault on the part of the Tribunal has either been advanced or made out.  Further, the conclusion of the Federal Magistrates Court was correct. 

CONSIDERATION

Ground 1 – Bias

22                It is to be noted that neither bias nor apprehended bias was specifically raised before the Federal Magistrates Court. 

23                In relation to a complaint of bias, an allegation must be distinctly made and clearly proven – Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507.  As the appellant has not particularised this ground of appeal it is unclear whether the allegation is one of actual bias or apprehended bias.  It is a rare case in which actual bias would be made on the part of the Tribunal: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].  In order to establish apprehended bias the appellant must demonstrate that a fair-minded, properly informed lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide: see Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982 at [27]-[29] . 

24                The appellant has not sufficiently particularised his claim of bias nor has he produced any affidavit or other evidence in support of the allegation.  On reading the transcript of the Tribunal hearing of 23 July 2007, I can discern no indication that the Tribunal was predisposed to a conclusion in the matter such that the conclusion would not be altered despite evidence and arguments being put before it or that a fair minded properly, informed lay observer might apprehend such impartiality.  On a number of occasions the Tribunal Member invited the appellant to comment on perceived inconsistencies and to provide additional evidence.  

25                In my view both the transcript and the decision record of the Tribunal indicate that there was a fair appraisal of the appellant’s evidence.  There was neither bias nor apprehended bias.  This ground cannot succeed.

Ground 2 – Additional evidence

26                This ground of appeal relates to the document described as an arrest warrant.  It is argued that the learned Federal Magistrate did not allow the appellant a chance to provide more documentary evidence.  At the hearing in the Court below, the appellant sought leave to tender further evidence.  I have dealt with this issue (at [17]-[21] above) in discussing the oral argument raised by the appellant. 

27                An appeal from the Tribunal to the Federal Magistrates Court or an appeal to this Court is limited to review of jurisdictional error.  Fresh evidence is not admissible unless it bears on some jurisdictional error.  In MZXHY v Minister for Immigration and Citizenship[2007] FCA 622, Nicholson J stated at [8]:

It is not open for an appellant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal.  Spender J in Servos v Repatriation Commission (1995) 56 FCR 377 at 380 determined the question of ‘... whether, and to what extent, an appellant for review pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) can adduce evidence which was not before the tribunal at the time of its decision’.  At 381 Spender J observed that appeals to the Court from the Administrative Appeals Tribunal ‘... are only on questions of law’.  His Honour further held at 382 that the Court had no power to receive the fresh evidence: see also at 385. Marshall J in Ozberk v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 249 at 254 approved Servos 56 FCR 377 in a migration law framework.

28                The appellant relies on this document to challenge the factual findings of the Tribunal.  As a merits review is not permissible in this Court nor in the Federal Magistrates Court, I find that his Honour was correct in concluding that the document could not be admitted.

Ground 3 – Reasonableness

29                The third ground raised by the appellant is that his application was not considered reasonably by the Federal Magistrate.  The appellant has not particularised this ground in any way nor has he directed the Court to any error in the approach taken by his Honour.  In reviewing the learned Federal Magistrate’s decision, I can discern no indication that the appellant’s application was not considered reasonably.  His Honour made comprehensive findings on all of the grounds raised before him: see [16]-[28] SZJMG [2008] FMCA 413.  In my view this ground has not sufficiently been made out.   This ground cannot succeed.

30                In my opinion, the approach of the Federal Magistrate and his Honour's conclusions were entirely correct.

CONCLUSION

31                The appeal will be dismissed.  The appellant is to pay the costs of the appeal, to be taxed if not agreed.

Associate:

Dated:              8 August 2008