FEDERAL COURT OF AUSTRALIA

SZLVN v Minister for Immigration & Citizenship [2008] FCA 1301

SZLVN v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 876 OF 2008

JACOBSON J

13 AUGUST 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs of the appeal in the amount of $2,500.00.

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

REASONS FOR JUDGMENT

            Introduction and Background

1                     This is an appeal from orders made by Orchiston FM dismissing an application for review of a decision of the Refugee Review Tribunal dated 15 November 2007.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa. 

2                     The appellant is a citizen of China.  He arrived in Australia on 22 April 2007 and applied for a protection visa one month later, on 22 May 2007.  The delegate decided to refuse to grant the visa on 9 August 2007.  Thereafter, the appellant applied to the Tribunal for a review of the delegate’s decision. 

3                     The appellant claimed to have a well-founded fear of persecution on political or religious grounds or by reason of membership of a particular social group, as a result of his practice of Falun Gong. 

            Decision of the Refugee Review Tribunal

4                     The Tribunal found that in the course of the hearing before it, the appellant’s responses were vague, lacked details, and were “internally inconsistent and inconsistent with his written claims.”  The Tribunal also found that the appellant’s knowledge of Falun Gong was not commensurate with his claims that he had been a practitioner since 1998.  The Tribunal apparently took into account that the appellant said he had stopped practising Falun Gong in 2003, and recommenced in 2007, but the Tribunal did not accept that the appellant had been involved in the various activities which he claimed in his evidence. 

5                     The Tribunal decision record sets out at some length the details of what took place at the hearing.  This is recorded in the section under the subheading entitled “Summary of the applicant’s evidence”.  It is plain that the Tribunal hearing lasted for a considerable time.  The decision record shows that it conducted the hearing over a period of approximately two and a half hours. 

6                     The Tribunal states in its findings and reasons that it discussed, in the course of the hearing, a number of concerns about the appellant’s evidence.  These are recorded under seven lengthy dot points.  Some of the dot points include a number of subparagraphs.  In each of these bullet points the Tribunal records the view that it reached and put to the appellant, that his responses to the questions asked of him were vague and unclear and, in the Tribunal’s opinion, unsatisfactory in the various respects set out in the decision record. 

7                     The Tribunal then went on to say:

Whilst the Tribunal appreciates that each of the above listed evidentiary problems may not be problematic for the applicant, however, when they are considered cumulatively, the Tribunal is satisfied that they impugn the applicant’s credibility.  In consideration of the evidence as a whole and given the above-noted concerns, the Tribunal is not satisfied that the applicant commenced to practise Falun Gong in 1998, or that he was involved in any Falun Gong activities in China, such as…

I will not record each of the various activities that the Tribunal there sets out.  The Tribunal was therefore not satisfied that the appellant had suffered, or that he would suffer, any of the harm that he claimed. 

8                     The appellant relied, in his evidence before the Tribunal, on photographs and other material relating to his Falun Gong activities in Australia.  However, the Tribunal considered that this evidence consisted of conduct engaged in in Australia for the purpose of strengthening the appellant’s application for a protection visa.  The Tribunal disregarded those activities pursuant to s 91R(3) of the Migration Act 1968 (Cth). 

9                     The Tribunal concluded by saying that, in essence, it was satisfied that if the appellant were to return to China, he would not practise Falun Gong, not out of a fear of persecution but out of a lack of genuine interest in the practice of that faith.  Accordingly, considering the evidence as a whole, the Tribunal found that the appellant did not have a well-founded fear of persecution for a Convention reason. 

            Decision of the Federal Magistrate

10                  In his application for review before the Federal Magistrate, the appellant raised only one ground of review in the written application.  This was that the decision of the Tribunal made no reference to the promptness with which he applied for a protection visa following his arrival in Australia. 

11                  The Federal Magistrate did not consider that a one-month period between the applicant’s arrival in Australia and his lodgement of an application for a protection visa could be characterised as being particularly prompt.  The learned Federal Magistrate went on to say that she accepted that this question was one of the weight to be given to particular evidence before the Tribunal, and did not therefore constitute any ground of jurisdictional error. 

12                  The Federal Magistrate was of the view that the Tribunal had made clear findings of fact on what it identified were the determinative issues concerning its doubts about the lack of details and inconsistencies in the appellant’s evidence from which it made an adverse finding as to the appellant’s credibility.  Her Honour’s reasons are encapsulated in what she said at [30] to [31] of her reasons for judgment.  I will set out those paragraphs in full:

30. Overall, I consider that a fair reading of the Tribunal’s decision record makes it clear that the Tribunal understood the nature of the applicant’s claims; explored those claims with him at the hearing; identified the determinative issues and gave him sufficient opportunity to give evidence and make submissions on those issues at the hearing; and closely noted the applicant’s responses.  The Tribunal then made findings based on all the evidence and material before it.

31. I consider that its findings of fact, in particular as to the applicant’s adverse credibility, were open to it on the evidence and material before it; that it provided well-articulated and sufficient reasons for rejecting the applicant’s claims; that it applied the correct law to those findings; and reached its conclusion that the applicant was not a person to whom Australia has protection obligations, based on those findings.  In these circumstances, I am satisfied that the Tribunal complied with the statutory regime in the making of its decision and performed the tasks required of it in accordance with law.

           
            The Appeal

13                  The appellant’s Notice of Appeal raises three grounds.  The first is that the Tribunal failed to consider his application because of bias.  The second is that the Tribunal failed to comply with s 424A of the Migration Act 1968 (Cth).  The third ground really adds nothing to the other two because it states that the Federal Magistrate failed to find the two previously mentioned “jurisdictional errors.” 

14                  The appellant appeared before me this morning in person.  He was assisted by a Mandarin interpreter.  The substance of what he put before me this morning can be stated as raising two points.  The first was to challenge the factual findings of the Tribunal.  The second was that the Tribunal did not consider his “health conditions” during the hearing before the Tribunal which lasted for some two and a half hours.  He told me that the Tribunal member did not ask him whether he wanted a break in the course of giving evidence, and he said that he was very nervous during the hearing.  He told me that this explains the reasons for any inconsistencies in his evidence before the Tribunal. 

15                  No transcript of the hearing before the Tribunal was put before me.  I considered whether it may be appropriate to grant an adjournment to enable the appellant or the Minister to obtain a transcript.  However, the appellant told me that he did not raise his “health concerns” with the Tribunal when he appeared before it on 26 October 2007.  Thus, the substance of his complaint is that the Tribunal ought to have taken into account his nervousness at the hearing even though he did not actually inform the Tribunal member of this fact.  Accordingly, I was satisfied that there was no point in granting an adjournment to enable a transcript to be obtained, because, plainly, there was nothing on the transcript, the issue not having been stated by the appellant when he appeared before the Tribunal in October of last year. 

16                  This issue was not raised in the application for review in the Federal Magistrates Court, but the appellant did refer to his nervousness when he addressed the Federal Magistrate at the hearing on 1 April 2008.  I have been able to obtain a copy of the transcript of the hearing of that date which accords almost exactly with what the appellant told me this morning from the bar table.  This was that he told the Tribunal that he was in a strange place, in a strange country, that he had language barriers, and that was why he felt very nervous.  He said that he was also feeling very nervous before the Federal Magistrate.  Later, he said that these difficulties explained why it was natural for him to feel nervous psychologically before the Tribunal.  He said to the Federal Magistrate:

Even now, my heart is beating very fast, I feel very nervous.

17                  The learned Federal Magistrate did not deal directly with that complaint in her reasons for judgment.  However, I do not consider that it was necessary for her to do so.  To the extent necessary, her Honour seems to have covered the point by stating in [30] of her reasons that she gave the appellant sufficient opportunity to give his evidence. 

18                  I can well understand the appellant’s nervousness in the various hearings.  Counsel for the Minister, Ms Sirtes, observed that it is commonly something which is said by applicants for refugee status.  Clearly, a great deal turns on these hearings, but I do not consider that the fact of the appellant’s nervousness is a matter which could be said to constitute jurisdictional error within the meaning of the authorities.  This is particularly so where an applicant does not raise the matter directly with the Tribunal.  It may be that in certain circumstances a lengthy and uninterrupted hearing might give rise to some possible ground of complaint.  However, as the High Court observed in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25]:

What is required by procedural fairness is a fair hearing, not a fair outcome.

 The relevant question is about the Tribunal’s processes, not its actual decision.  It seems to me that this observation is equally apt in the present case. 

19                  Nor do the appellant’s complaints about the Tribunal’s fact finding give rise to jurisdictional error.  It is well established that questionable fact finding, as such, does not by itself constitute jurisdictional error. 

20                  It may, in some circumstances, be a matter which goes to the question of bias.  That is the first of the grounds of appeal stated in the Notice of Appeal.  However, I do not consider that there is anything in the decision record which would suggest that the Tribunal approached the matter with a closed mind. 

21                  As von Doussa J said in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [36]-[38], it is a rare case where a finding of bias can be made upon the basis solely of the decision record.  This is not a case where bias can be found upon the basis of the materials before me, nor is there anything to suggest that the decision was affected by a reasonable apprehension of bias. 

22                  The only other relevant ground of appeal is the alleged contravention of s 424A of the Act.  The effect of the appellant’s Notice of Appeal is that he complains that the Tribunal failed to notify him of its reasons for affirming the decision.  That is not “information” within the meaning of s 424A of the Act.  As the High Court said in SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [18]:

“Information” does not encompass the tribunal’s subjective appraisals, thought processes or determinations.

23                  The appellant considered that it was unfair for the Tribunal to make its decision based on the concerns that it put to him in the course of the hearing.  But that was no more than an expression of the Tribunal’s compliance with its obligations of procedural fairness which required the Tribunal to put to the appellant the critical matters upon which the decision was to turn: see SZBEL at [32] and [44]. 

            Conclusion and Orders

24                  It follows, in my view that the appeal must be dismissed and I will so order.  I will order the appellant to pay the costs of the first respondent of the appeal, fixed in the amount of $2,500.00.

Associate:

Dated:         22 August 2008