FEDERAL COURT OF AUSTRALIA

SZMAQ v Minister for Immigration and Citizenship [2008] FCA 1642

SZMAQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1330 of 2008

BESANKO J

7 NOVEMBER 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 in the sum of $1,800.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     This is an appeal from orders made by the Federal Magistrates Court. That court considered an application by the appellant for constitutional writs in relation to a decision of the Refugee Review Tribunal (“the Tribunal”). The Federal Magistrates Court made an order that the application for constitutional writs be dismissed.

The facts

2                     The appellant is a national of the People’s Republic of China and he arrived in Australia as a visitor on 23 May 2007. He applied for a Protection (Class XA) visa on 7 June 2007. On or about 20 August 2007 he was advised that a delegate of the Minister had refused his application. He applied to the Tribunal for a review of the delegate’s decision. The Tribunal conducted a review and on 29 January 2008 it handed down a decision in which it affirmed the delegate’s decision not to grant the appellant a protection visa.

3                     The appellant then applied to the Federal Magistrates Court for constitutional writs. As I have said, that application was refused: SZMAQ v Minister for Immigration & Citizenship [2008] FMCA 1192.

4                     In his application for a protection visa, the appellant claimed that his paternal grandfather was a member of the Kuomintang Party, or Nationalist Party, in China. He claimed that his paternal grandfather suffered persecution as a result of that fact and that his father also suffered persecution or disadvantage as a result of “the family’s bad political pedigree”. The appellant claimed that in due course his own schooling and ability to obtain employment were affected. In 2003 the appellant went to a Chinese traditional massage parlour but while there he was apprehended by the police and later beaten by them. In 2005 the police asserted that the appellant was the main suspect in a failed bank robbery. He was arrested and taken into custody. He claimed that he was kept in custody for a year and beaten frequently. The appellant claimed that his family was denied income support.

5                     The appellant claimed that in 2006 he joined a church and became a Christian. He acted secretly because he was concerned about being detected by the authorities. The appellant fears that if he returns to China he will be arrested because of his association with the underground church. He fears that he may be forced to confess to crimes which he did not commit and imprisoned for a substantial period. The appellant claimed that if he returned to China the Public Security Bureau would harm and mistreat him “because of my new-found faith along with my family’s political stigma”.

6                     Further details of the appellant’s claims and other matters are set out in the Tribunal’s reasons. There is no need for me to set out that information.

7                     The Tribunal member was not satisfied that the appellant was a credible witness. She said that she found the appellant’s evidence “inconsistent and implausible”. The Tribunal member referred to particular aspects of the appellant’s evidence. She said that she did not accept any of the appellant’s claims. She did not accept that various events described by the appellant had occurred and she did not accept the appellant’s claim that he attended a Christian gathering in China in December 2006. The Tribunal member said that she did not accept that the appellant had attended any church services since his arrival in Australia and she did not accept that the appellant is of interest to the authorities in China because of any involvement or perceived involvement with an underground Christian gathering or group. The Tribunal member rejected the appellant’s explanation as to why he was able to leave China. She said that she was not satisfied the appellant had suffered any Convention-related harm, nor was she satisfied that there was a real chance of such harm occurring to the appellant in the reasonably foreseeable future. The Tribunal member found that the appellant did not have a well-founded fear of persecution for a Convention reason.

8                     Before the Federal Magistrates Court, the appellant complained that the interpreter had not interpreted his evidence before the Tribunal properly. The federal magistrate said that there was no evidence to support the appellant’s claims and that he did not accept them.

9                     The appellant also claimed before the Federal Magistrates Court that the Tribunal had used information which was out of date. As to that claim, the federal magistrate said (at [22]):

The third ground in the application does not specify the information which is referred to. It appears to me that the Tribunal has taken into account relevant general and country information, and certainly information that was open to it to consider. I consider that this ground does no more than argue with the merits of the factual conclusions arrived at by the Tribunal, but it is not the task of the Court to revisit those factual issues.

10                  The federal magistrate said that he was not persuaded that the Tribunal’s decision was “affected” by jurisdictional error.

The appeal

11                  In his notice of appeal to this Court, the appellant raised the following grounds:

1.         Refugee Review Tribunal had bias against me and did not make fair decision for my application.

2.         I clarify all my points at the hearing of the Federal Magistrates Court, but the judge did not consider my application fairly. The judge refused my application on 14 August 2008. It is not fair. I am Christian. I will be persecuted if I return to China.

3.         I believe that my application was not considered reasonably by the judge at the Federal Magistrates Court.

12                  These complaints are very general.

13                  The allegation of bias is, of course, a serious allegation and the matters relied on to establish bias must be clearly identified. Furthermore, in order to establish bias the complaining party must clearly prove those allegations. In this case there is simply nothing to suggest that the Tribunal was biased.

14                  In his oral submissions to this Court the appellant complained about the interpreter who had interpreted his evidence. The fact is that there is no evidence that the interpreter failed in his or her duty to interpret the appellant’s evidence fairly and accurately. The discussion and level of detail in the Tribunal’s reasons suggests the contrary and, in any event, the appellant was given the opportunity in the Federal Magistrates Court to present evidence of the transcript of the hearing before the Tribunal and of the quality of the translation. He did not take that opportunity.

15                  The complaints in grounds two and three relate to the hearing in the Federal Magistrates Court. They must be rejected. They never went beyond general assertion and I can detect no error in the federal magistrate’s reasons.

Conclusion

16                  The appeal must be dismissed and the appellant must pay the first respondent’s costs of the appeal.

Associate:

Dated:         7 November 2008