FEDERAL COURT OF AUSTRALIA

SZLSO v Minister for Immigration and Citizenship [2008] FCA 1174

Migration Act 1958 (Cth) ss 424A, s 424A(1), 424A(3)(a), 424A(3)(b), 424A(3)(ba), 474(2) 

Abebe v Commonwealth of Australia (1999) 162 ALR 1

Minister for Immigration and Citizenship v SZHXF [2008] FCAFC 36

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

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

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

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

SZLSO v Minister for Immigration & Anor [2008] FMCA 312

SZLSO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 605 of 2008

MCKERRACHER J

8 August 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed. 

2.                  The appellant is to pay the first respondent’s costs of the appeal fixed at $2485.25. 

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     The appellant appeals from a judgment of a Federal Magistrate delivered on 9 April 2008 (SZLSO v Minister for Immigration & Anor [2008] FMCA 312) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal).  The Tribunal decision was delivered on 8 November 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 the People’s Republic of China.  She arrived in Australia on 16 April 2007.  On 24 April 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.  A delegate of the first respondent refused the application for a protection visa on 18 June 2007.  On 24 July 2007 the appellant applied to the Tribunal for a review of that decision.  

THE APPELLANT’S CLAIMS

3                     In the appellant’s protection visa application she claimed to fear persecution by reason of being a Falun Gong practitioner.  Before the Tribunal, the appellant provided a statutory declaration in support of her review application.  In this statutory declaration she departed from her claims in her protection visa application and stated that she feared persecution from the authorities in China because of her anti-government activities in China.  Those activities allegedly involved organising anti-government rallies and drafting and distributing a petition.  As a result she was allegedly arrested and placed in detention.  The appellant also claimed that she was further harassed by the Public Security Bureau (PSB) after her release.

BEFORE THE TRIBUNAL

4                     The Tribunal found the appellant not to be a truthful or credible witness.  The Tribunal noted the following:

1.                  There were inconsistencies in the appellant’s evidence regarding the petition she claimed to have drafted and the distribution of that petition as well as the failure of the appellant to remember the contents of the petition;

2.                  The appellant’s evidence was inconsistent regarding her employment as a cleaner at the Coal Capital Hotel and in relation to the date on which she ceased to work at that hotel;

3.                  The inability of the appellant to recall any information regarding the Coal Capital Hotel, other than what was available on the internet;

4.                  The inability of the appellant to recall details regarding her detention by the police and the protest she claimed to have taken part in;

5.                  There were inconsistencies in the evidence given by the appellant regarding her identity and date of birth.

5                     The Tribunal was therefore not satisfied that the appellant was 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) and affirmed the decision of the delegate not to grant the appellant a protection visa.

ON REVIEW BY THE FEDERAL MAGISTRATES COURT

6                     Before the Federal Magistrate the appellant contended:

1.         The Tribunal made its finding based on the information which has (sic) completely misstated by it.

2.         The Tribunal failed to put up its questions clearly.

3.         The Tribunal’s decision has included a reasonable apprehension of bias.

4.         The Tribunal failed to ensure [the appellant understood] the issue arising in relation to the review; and the Tribunal failed to create a genuine opportunity for [the appellant] to comment on the issue arising from the review either at the Tribunal’s hearing or doing it in writing.

5.         The Tribunal has been constituted by an unqualified member

7                     In relation to the first ground, the learned Federal Magistrate noted that the appellant provided no evidence in support of such an allegation, such as a transcript of the Tribunal hearing, despite having been directed to file and serve such evidence.  Her Honour held that a fair reading of the Tribunal’s decision disclosed that the findings of the Tribunal were open to the Tribunal on the evidence and material before it and for which it gave reasons.

8                     In relation to the second ground, the learned Federal Magistrate held that the Tribunal’s adverse credibility findings were open to it on the evidence and material before it for which it provided reasons.  Further, the appellant’s credibility was a matter ‘par excellence’ for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).  Whilst the particulars complained that the Tribunal did not put its questions clearly, such a contention was not supported by evidence, such as a transcript of the hearing.  Moreover, a fair reading of the Tribunal’s reasons did not support such a contention.  In the circumstances, any misunderstanding by the appellant of the questions put to her by the Tribunal did not amount to jurisdictional error on the part of the Tribunal.

9                     In relation to the third ground, her Honour found that a fair reading of the Tribunal’s reasons did not suggest that the Tribunal approached its task other than with a mind open to persuasion.  Ground 3 was therefore more in the nature of a disagreement with the Tribunal’s findings, thereby inviting merits review which the Court could not undertake.  

10                  In relation to the fourth ground, her Honour found that the information about the hotel on the website was not information that enlivened the obligations of s 424A of the Migration Act 1958 (Cth) (the Act).  This was due to the fact that it was information not specifically about the appellant and was therefore excluded from the obligations of s 424A(1) of the Act by reason of s 424A(3)(a) (Minister for Immigration and Citizenship v SZHXF [2008] FCAFC 36 at [19]).  Further, the Tribunal’s thought processes in evaluating the evidence before it were not matters that the Tribunal was obliged to put to the appellant.

11                  Finally, her Honour held, in relation to ground 5, that the particulars did not support an allegation that the Tribunal member was unqualified and there was no evidence before the Court to support such an allegation.

12                  The learned Federal Magistrate, in considering the Tribunal’s decision in light of the claims made by the appellant, dismissed the application.

GROUNDS OF APPEAL

13                  Before this Court the appellant now claims, in substance, that the learned Federal Magistrate erred in:

1.                  Not finding that the decision of the Tribunal was based on information which was completely misstated by it;

2.                  Finding that the Tribunal’s adverse credibility findings were open to it on the evidence and materials before it and for which it provided reasons;

3.                  Not finding that the Tribunal’s decision included a reasonable apprehension of bias;

4.                  Not finding that the Tribunal failed to comply with its obligations under s 424A(1) of the Act.

5.                  Not finding that the appellant provided evidence in support of her claim that the Tribunal member was unqualified. 

6.                  Finding that the application for judicial review was considered properly and fairly.

14                  At the hearing of the appeal the appellant repeated the grounds above and the particulars detailed below.  The challenges raised to the processes of the Tribunal were very similar to those made before the Federal Magistrates Court. 

15                  As a preliminary general observation, it must be emphasised that the Tribunal’s decision can be set aside in circumstances where the Tribunal has fallen into jurisdictional error, for example, where there has been ‘a failure to discharge “imperative duties” or to observe “inviolable limitations or restraints”’:  Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.  The decision of the Tribunal is a ‘privative clause decision’ within the meaning of s 474(2) of the Act and is not amendable to judicial review by this Court unless the appellant can demonstrate that the decision involved jurisdictional error. 

CONSIDERATION

Ground 1 – Misstatement of evidence

16                  The appellant has particularised this and the other grounds of the appeal in some detail.  As to this ground the particulars are as follows:

The learned Federal Magistrates (sic) failed to find that I have not only in writing provided contents of the petitions in details but also submitted a full copy of the petition with translation by accredited translator.  Therefore, if the Tribunal fairly considered my evidences, then it will find that I have already provided evidences to support its findings as follows:

If the applicant had been involved in the drafting and distribution of a petition in March 2007, she would have been able to tell the Tribunal specific details about the contents of that petition.

In other words, if the Tribunal had not actually forced me to recite the contents of the petition words by words, then the Tribunal would have ignored my important evidences on purpose.

17                  As indicated, this ground was also raised before the learned Federal Magistrate.  The appellant submits, as she did before her Honour, that the Tribunal had sought to force her to recite the contents of the petition word by word.  As her Honour held, a fair reading of the Tribunal’s decision does not support this suggestion.  The Tribunal record discloses a detailed exchange with the appellant in which the Tribunal asked her questions about the petition including details about its contents.  One such example had been the question raised by the Tribunal as to what the last paragraph of the petition called on the government to do, in substance, how it ended; the author of the petition; the date of the petition and such like.  And although the appellant claimed that she and another person had written the petition, she then contended that she had not actually written the petition because she was not well educated.  The Tribunal found, as her Honour noted, ‘that the fact that there was a significant shift in the applicant’s evidence when she could not describe the contents of the petition indicates that the applicant is not a truthful witness’. 

18                  I am unable to discern any basis for support for this ground.  The analysis of the learned Federal Magistrate was correct and the ground must fail. 

Ground 2 – Failure to put questions clearly

19                  The substance of the particulars filed in support of this ground are that the learned Federal Magistrate failed to conclude that unclear questions from the Tribunal, together with the appellant’s poor health at the time of posting the petitions, were the reasons she was unable to identify how many copies of the petition had been made. 

20                  The Tribunal’s summary of the appellant’s evidence is as follows:

The Tribunal asked how many copies of the petition they made.  The applicant claimed that [named person] did the photocopying and she didn’t know how many copies they had made.

The Tribunal asked the applicant how they distributed the petition to the staff at the hotel.  The applicant claimed that they posted it to their families. …  The Tribunal asked how many letters they posted.  The applicant claimed more than 20.  (first Tribunal hearing)

…

The Tribunal asked the applicant how many petitions they posted.  The applicant claimed they posted 6-7 petitions.  The applicant then claimed that she didn’t know how many petitions they posted because she was in poor health and she didn’t post them.  When the Tribunal asked the applicant how many petitions she handed to the workers she claimed quite a lot.  When the Tribunal asked the applicant to be more specific she claimed she couldn’t remember but she thought maybe twenty.  (second Tribunal hearing)

21                  Once again, however, the Federal Magistrates Court examined the Tribunal’s reasons and concluded that a fair reading of those reasons disclosed that the Tribunal explored with the appellant the statement in her statutory declaration that she and others had made many copies of the petition and sent them to the staff at the Hotel at which the appellant was employed and to the families. 

22                  Her Honour noted that the Tribunal had already concluded that the appellant’s evidence had been unsatisfactory in relation to the preparation of the petition due to the inconsistencies in the evidence in that regard.  Her Honour also noted that there was no evidence such as a transcript of the hearing which might support the contention that the questions of the Tribunal were unclear.  In this regard the appellant when seeking review by the Federal Magistrates Court had been directed to file and serve any evidence such as the transcript of the hearing.  The appellant had not done so.

23                  There was no evidence before the Federal Magistrates Court as to lack of clarity in the questioning.  Her Honour’s conclusion that the Tribunal’s adverse credibility findings were open to it on the evidence and material before it and for which it provided reasons was correct.  Her Honour’s reliance on the Durairajasingham 168 ALR 407 at [67] per McHugh J was also appropriate. 

24                  It follows that there is no discernable jurisdictional error in the approach taken by either the Tribunal or the learned Federal Magistrate.

Ground 3 – Reasonable apprehension of bias

25                  The particulars advanced by the appellant to support an allegation of a reasonable apprehension of bias were not particulars that could go to a bias complaint.  The particulars were that:

the learned Federal Magistrates (sic) failed to consider that the Tribunal actually forced a person like me, who is just an ordinary hotel’s cleaner and who worked at the bottom of it and who even did not have any basic human rights, knew everything about the hotel. 

26                  I take these particulars to be a complaint that the Tribunal expected the appellant to know too much about the particular hotel in which she worked and that the learned Federal Magistrate should have identified that alleged failing on the part of the Tribunal. 

27                  On the appellant’s own evidence, she was more than an ‘ordinary hotel’s cleaner’.  Rather, she was an organiser of an open protest against the hotel authorities and gave public speeches calling for all female staff to stop working. 

28                  There are many inconsistencies in the appellant’s evidence, as summarised in the Tribunal’s reasons, which justified the Tribunal’s conclusion that the appellant was not a credible witness.  As held by the court below, ‘a fair reading of the Tribunal’s reasons does not suggest that the Tribunal approached its task other than with a mind open to persuasion’. 

29                  The Federal Magistrate found that this ground of review was in the nature of a disagreement with the Tribunal’s findings, thereby inviting merits review which the Court could not undertake: Abebe v Commonwealth of Australia (1999) 162 ALR 1; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.   

30                  In my view her Honour was correct in finding that there is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal did not bring an impartial mind in determining the application for review: Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982 at [27]-[29]. 

Ground 4 – Breach of s 424A and s 425

31                  To the extent that this ground is not a repetition of ground 2, the appellant did not identify which information the Tribunal relied upon in a manner that breached s 424A of the Act.  In this regard, the Tribunal relied upon the following categories of information:

(a)               the appellant’s statutory declaration provided with her application for review, which falls within the exception stated in s 424A(3)(b);

(b)               evidence given by the appellant at her hearing before the Tribunal, which also falls within the exception in s 424A(3)(b);

(c)               information obtained from a website regarding the hotel at which the appellant claimed to work, which falls within the exception stated in s 424A(3)(a); and

(d)               information obtained from the appellant’s original application for a visa, which falls within the exception stated in s 424A(3)(ba), although it was the subject of a letter issued pursuant to s 424A.

32                  In these circumstances, the Tribunal fully complied with its obligations under s 424A of the Act.  It is clear that the Tribunal put to the appellant on several occasions that evidence given by the appellant was either inconsistent or lacking in detail.  The Tribunal also put to the appellant on at least two occasions that its concerns regarding her evidence may indicate that the appellant was not a truthful witness and was not entitled to a protection visa. 

33                  The appellant has failed to demonstrate any breach by the Tribunal of its obligations under s 424A and s 425 of the Act.  No error is discernable in the approach taken by either the Tribunal or the learned Federal Magistrate in this regard and this ground also fails.

Ground 5 – Failure to undertake inquiries

34                  The particulars in support of the assertion that the Tribunal member was unqualified were confused.  The submission appeared to be that the Tribunal failed to realise that it could employ its own experts to verify documents submitted by the appellant, presumably the petition.  This submission misconceives the obligation of the Tribunal.  The Tribunal did not find the appellant to be credible or truthful.  There is no demonstrated jurisdictional error. 

Ground 6

35                  Finally, the appellant contends that the learned Federal Magistrate failed to consider her claims properly and fairly.  As already noted above, her Honour addressed all of the grounds of review submitted by the appellant.  No error has been demonstrated in the reasons given by her Honour for dismissing those grounds.  There is no evidence to suggest that the learned Federal Magistrate failed to consider the appellant’s claims properly and fairly. 

36                  The approach of the Federal Magistrate and her Honour's conclusions were entirely correct. 

CONCLUSION

37                  The appeal will be dismissed.  The appellant is to pay the first respondent’s costs of the appeal fixed at $2485.25. 

Associate:

Dated:         8 August 2008