FEDERAL COURT OF AUSTRALIA

SZMBX v Minister for Immigration and Citizenship [2008] FCA 1660

Migration Act 1958 (Cth)

SZMBX v Minister for Immigration and Citizenship [2008] FMCA 1090 cited

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

SZMBX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1231 of 2008

TRACEY J

12 NOVEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed with costs fixed in the amount of $2,700.

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 a judgment of a Federal Magistrate delivered on 16 July 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 28 February 2008: see SZMBX v Minister for Immigration and Citizenship [2008] FMCA 1090.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

BACKGROUND

2                     The appellant is a citizen of the People’s Republic of China who entered Australia on 12 June 2007.  He entered on a visitor’s visa.  On 26 July 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 23 October 2007.  On 23 November 2007 the appellant applied to the Tribunal for a review of that decision.

3                     In a Statutory Declaration filed in support of his visa application the appellant claimed that, encouraged by his friend, who was a member of the China Democracy Party (“CDP”), he organised a protest against corrupt Communist officials who sold a large piece of farm land which included his family’s land, but gave the appellant’s family only minimal compensation.  He contacted other locals in the village and handed out pamphlets which called on local people not to bear unfair treatment and to strive for their basic human rights.  He claimed that he organised a protest, which was attended by about 100 people.  The protest was quickly suppressed by the Public Security Bureau (“PSB”).  He claimed, that through his relationship with his friend, the PSB came to believe that he was a key member of the CDP and that he had been instructed by the CDP to organise the protest.  He claimed that he was wanted by the PSB and therefore went into hiding before illegally leaving China with the help of some friends.  He was smuggled to Taiwan and came to Australia on a false Taiwanese passport.

4                     During the hearing the appellant said that, on 25 April 2007, he had conducted investigations about people whose land had been taken by the authorities by going to families and asking about any land taken.  When he visited the families, he was finding out about the land as well as organising the demonstration.  He set a date for the demonstration on 27 April 2007.  On 26 April 2007, 5,000 copies of the pamphlet were printed and he gave pamphlets to anyone he encountered in the street.  At the protest the police told him the protest was anti-government, and that the protestors were breaking the law.  The police held him by his jacket.  There were about 20-30 police officers and there were now 200-300 people involved in the demonstration which became chaotic.  After he fled the demonstration he lived at a friend’s home.  Three police cars went to his home on 28 April 2007.

REFUGEE REVIEW TRIBUNAL

5                     The Tribunal found, on the evidence as a whole, that the appellant was not a credible witness.  The Tribunal considered that the Statutory Declaration completed by the appellant was detailed and comprehensive and that, therefore, new claims made at the hearing raised doubts about his credibility and the veracity of his claims.  The Tribunal found the appellant’s evidence about how he organised the protest to be internally inconsistent, vague and unclear.  The Tribunal found the appellant’s alleged organisation of a large protest was implausible and it did not accept that the protest took place.

6                     The Tribunal was not satisfied that the appellant’s friend was a member of the CDP or that he encouraged the appellant to organise a demonstration; that corrupt Communist officials sold parcels of farm land; including the appellant’s farm land; that the appellant ever organised a demonstration; that such a demonstration took place or that he arranged for the distribution of pamphlets.  The Tribunal did not accept that the appellant was grabbed by police, that police went to his home or that he went into hiding.  The Tribunal was not satisfied that the appellant was of any adverse interest to the PRC authorities because of his relationship with his friend or that any member of his family had been questioned by the police.  The Tribunal did not accept that the appellant left China for any of the claimed reasons, that he left China illegally or that he would be subjected to persecution for any reason under the United Nations Refugee Convention 1951.

FEDERAL MAGISTRATES COURT

7                     On 25 March 2008 the appellant filed an application for judicial review of the Tribunal’s decision in the Federal Magistrates Court.  The appellant claimed that the Tribunal failed to ensure that he understood, or to invite him comment on the particulars of the information which the Tribunal considered to be a reason or part of the reason in making its decision; that the Tribunal decision “contained a reasonable apprehension of bias”; that the Tribunal failed to comply with its obligations under s 420 of the Migration Act 1958 (Cth) (“the Act”); and that the Tribunal failed to comply with its obligations under s 424A(1) of the Act.

8                     The appellant complained that he was not given the opportunity to comment on the Tribunal’s concerns that his oral evidence was unclear and that, because he had made substantial new claims at the hearing, this raised concerns about his credibility.

9                     The Federal Magistrate held that there was no requirement under s 424A or s 425 of the Act “for the Tribunal to provide a running commentary on its thought processes during the [appellant’s] evidence” and there was “no requirement for the Tribunal to offer the [appellant] the opportunity to comment whether orally or in writing, about the [appellant’s] own evidence to the Tribunal.”  Section 424A of the Act did not apply to information that the appellant gave for the purposes of the application for review or that the appellant gave during the process that led to the decision that is under review:  see ss 424A(3)(a) and 424A(3)(b) of the Act.  The Federal Magistrate found that, in any case, the Tribunal gave the appellant the opportunity to comment on the Tribunal’s concerns.

10                  The appellant claimed there was an apprehension of bias on the part of the Tribunal because the Tribunal found it difficult to accept that he had organised a large anti-government demonstration in the time claimed by the appellant, when the appellant had not organised any demonstration before.  The Federal Magistrate found that the appellant’s claim of bias was effectively a challenge to the Tribunal’s factual findings and was an attempt at merits review.  The decision maker was not required to accept uncritically all claims made by the appellant.  The Federal Magistrate found that there was no evidence of bias.

11                  The appellant complained that the Tribunal had failed genuinely to assess evidence favourable to him when it questioned the fact that the appellant raised substantial new claims at the hearing, and, in rejecting his claims, had made an unfair decision.  The Federal Magistrate noted that s 420 of the Act provided that, in carrying out its functions, the Tribunal was to pursue the objective of providing a mechanism for review that was fair, just, economical, informed and quick.  The Federal Magistrate referred to the observations of Brennan J in Attorney-General NSW v Quin (1990) 170 CLR 1 at 35-36 and concluded that no breach of ss 420 or 425 of the Act had occurred.  

12                  The appellant complained that the Tribunal failed to comply with its obligations under s 424A(1) by failing to give the appellant particulars of information, failing to ensure that the appellant understood that it would be relevant to his review application and failing to give the appellant the opportunity to comment on the information.  The Federal Magistrate found that the appellant had been given an opportunity to comment on the information at the hearing.  The issue of the [appellant’s] credibility “was squarely before the appellant, or should have been,” and that the appellant should not have been taken by surprise that his application was not accepted.  The Tribunal was not satisfied as to the appellant’s credibility or the credibility of his account.  That finding was open to the Tribunal.

13                  The Federal Magistrate was unable to find any other arguable case for jurisdictional error and dismissed the application.

APPEAL TO THIS COURT

14                  The notice of appeal to this court was filed on 6 August 2008.  The notice of appeal contained four grounds.  The first ground read:  “The learned Federal Magistrates (sic) erred in finding that the Refugee Review Tribunal (“the Tribunal”) has acted properly while it has assessed my credibility.  In particulars (sic), the Tribunal failed to comply with its obligations under s.425 of the Migration Act 1958 …”

15                  The second ground read:  “The learned Federal Magistrates (sic) erred in not finding that the Tribunal’s decision has included a reasonable apprehension of bias.”  

16                  The third ground read:  “The learned Federal Magistrates (sic) erred in law, because it has not found that the Tribunal failed to act according to substantial justice and the merits of the case.”

17                  The fourth ground read:  “The learned Federal Magistrates (sic) erred in law, because the Tribunal failed to comply with its obligations under s.424A(1) of the Act.

18                  The appellant appeared in person on the hearing of his appeal.  He had the assistance of an interpreter.

19                  He said that a friend had drafted the notice of appeal for him and had translated the document for him. 

20                  When asked to elaborate on the first ground he said that the Magistrate had erred by not believing that he had organised a demonstration of over 200 people in China.  He made the same complaint in relation to each of the other grounds.  It was the Tribunal’s failure to accept his claim to have organised the demonstration that was said to give rise to a reasonable apprehension of bias and the errors alleged in the third and fourth grounds.

21                  The appeal amounts to no more than an attempt to challenge the Tribunal’s finding of fact.  Those findings were open to the Tribunal. 

22                  I have carefully examined the reasons of the Tribunal and those of the learned Federal Magistrate.  I can detect no reviewable error in the Tribunal’s reasons or appellable error in the Federal Magistrate’s reasons.  On the contrary the learned Federal Magistrate was perfectly correct, for the reasons which he gave, in concluding that the appellant’s application for review should be dismissed.

23                  The appeal should be dismissed with costs.

Associate:

Dated:         12 November 2008