FEDERAL COURT OF AUSTRALIA

SZLPF v Minister for Immigration and Citizenship [2008] FCA 1692

Migration Act 1958 (Cth) ss 422B, 424A

SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 applied

NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 cited

Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 74 ALJR 405 cited

SZKLK v Minister For Immigration [2008] FCA 1125 cited

SZJGV v Minister for Immigration and Citizenship (2008) 247 ALR 451 cited

SZLPF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD914 of 2008

LOGAN J

10 NOVEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The Appeal is dismissed.

2.                  The Appellant is to pay the First Respondent’s costs of and incidental to 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.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     The Appellant is a citizen of the People’s Republic of China.  He came to Australia on 7 February 2007.  The following month he lodged with the Department of Immigration and Citizenship an application for what is known as a protection visa.  The Appellant’s protection visa application was refused by a delegate of the Minister for Immigration and Citizenship on 1 June 2007.  Later that month, and within the time permitted by the Migration Act 1958 (Cth), the Appellant lodged an application for the review by the Refugee Review Tribunal (the Tribunal) of the Minister’s delegate’s decision.

2                     On 19 September 2007, for reasons which it then published, the Tribunal decided to affirm the decision of the Minister’s delegate not to grant to the applicant a protection visa.  That decision was communicated to the Appellant by the Tribunal under cover of a letter dated 11 October 2007.  The Appellant then sought the judicial review of the Tribunal’s decision by the Federal Magistrates Court.  On 30 May 2008, for reasons then published, the Federal Magistrates Court dismissed the Appellant’s judicial review application.  It is from that decision that the Appellant now appeals to this Court. 

3                     The Appellant advances three grounds of appeal.  They are as follows. 

1.                  The Tribunal breached the rules or procedural fairness by failing to give the applicant an opportunity to comment on information which the Tribunal relied on.  Therefore, the Tribunal failed to comply with s 424A of the Migration Act. 

2.                  The Tribunal failed to take all relevant information into consideration applying a real chance test in determining whether the applicant will be persecuted by the Chinese Government or the local authority in his hometown if he returns to China. 

3.                  The Tribunal rejection of my refugee claims is unreasonable and has been affected by pre-judgment.  I was an underground Christian when I was in China.  I have experienced persecution and mistreatment from the Chinese government. 

4                     These grounds are essentially a replication of the grounds of review which were advanced before the Federal Magistrate.  On their face, the grounds do not seek to engage with the Federal Magistrate’s decision and to highlight alleged errors of law made by the Federal Magistrate.  It is important to recall that an appeal to this Court is not an exercise of original jurisdiction in respect of the judicial review of the decision of the Tribunal.  Rather, it is an exercise of appellate jurisdiction in respect of a decision of a Federal Magistrate.

5                     One way, perhaps, in the circumstances, of dealing with this appeal would be to treat it as failing to identify any error on the part of the Federal Magistrate and therefore without any substance.  Another way, and in my opinion the correct and also humane way of dealing with the appeal, is to treat the grounds as an endeavour by the Appellant to highlight the bases upon which the Federal Magistrate ought to have found administrative law error in the decision of the Tribunal.  That was the approach which the Minister took in the oral and written submissions made to the Court.  I respectfully commend the Minister and his legal representatives for so doing.

6                     I turn then to consider each of the grounds of appeal advanced. 

Ground 1: Alleged breach of s 424A 

7                     Section 422B of the Migration Act materially provides that Div 4 of Pt 7 of that Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. One such matter is the information which must be given to an applicant which the Tribunal considers would be the reason or part of the reason for affirming the decision under review before the Tribunal comes to make a final decision.  That is the province of s 424A.  In essence, that section, subject to exceptions not relevant, in the present case provides that the information must be given in writing to an applicant and an invitation to comment upon it extended to the applicant.

8                     In SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at 1196, para 18, in the joint judgment of Gleeson CJ and Gummow, Callinan, Heydon and Crennan JJ, the following passage appears:

if the reason why the tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of paragraph (a) of section 424A (1). Again, if the Tribunal affirmed the decision because even the best view of the Appellant’s evidence failed to disclose a convention nexus, it is hard to see how such a failure can constitute “information.”  Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 that:

The word “information” does not encompass the tribunal’s objective appraisals, thought processes or determinations … nor does it extend to identify gaps, defects or lack or detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc. 

9                     And then the High Court continued:

If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons, but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.

10                  There is both an evidentiary as well as a legal characterisation question involved in an allegation that s 424A has been breached.  For present purposes, the evidentiary element is resolved against the Appellant in the sense that it is patent that the Tribunal sent to him a letter dated 3 August 2007, which at least purported to comply with the obligation the Tribunal apprehended it had under s 424A.  When one examines the terms of that letter as a matter of legal characterisation, it is apparent that the Tribunal has complied with, and perhaps even exceeded, the obligations which fell on it pursuant to s 424A, having regard to what was said by the High Court in SZBYR.

11                  The Tribunal has, at some length in the letter, highlighted particular inconsistencies, which it apprehended, having regard to statements made by the Appellant, either to the Department or in evidence at the hearing the Tribunal conducted.  Having so done, the Tribunal, in its letter of 3 August 2007, stated that:

The inconsistent statements are relevant to the review, as they indicate that you may not be a truthful witness, and that you may have not told the truth in the information provided to, and the statements made to, the Department and to the Tribunal in support of your protection visa application.

12                  The Tribunal then, in its letter, invited the Appellant to give comments in writing on the information it had set out in the letter.  The Appellant did not respond to this invitation.  The learned Federal Magistrate concluded that in the circumstances, there had been no breach by the Tribunal of s 424A.  His Honour noted that, at para 83 of the Tribunal’s reasons, the Tribunal had come to a conclusion that the Appellant was not a truthful witness.  His Honour made reference (at para 15) to a portion of the Full Court’s reasons for judgment in VAF, quoted by the High Court in SZBYR, a passage I have already cited.  I respectfully agree with the learned Federal Magistrate that no breach of s 424A is evident.

Ground 2:  Alleged failure to take into account relevant information when applying a real chance test 

13                  When asked to elaborate upon this ground in oral submissions, the Appellant replied, “no comment”.  Again though, out of considerations of fairness and humanity, it seems to me that with an appellant whose primary language is not English and for whom these processes must seem quite strange, it seems to be preferable to consider this ground on its merits, rather than to treat it in light of the oral submission made as having been abandoned.  One finds in the Federal Magistrate’s decision at para 17 what in my respectful opinion is an apt summary of principle pertinent to this ground of appeal as given by Moore, Tamberlin and Allsop JJ in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at para 115:

By and large fact finding is a task within jurisdiction, though factual error is not necessarily mutually exclusive of jurisdictional error Re Minister for Immigration and Multicultural Affairs ex parte Applicant S20 of 2002 198 ALR 9 where fact finding has been conducted in a manner which can be described as here as in substantial respects unreasoned and mere assertion lacking rational or reasoned foundation at times is plainly and ex facie wrong and is selective of material going one way.  These conclusions may found a conclusion that the posited fair-minded observer might or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly.  How else the fair-minded observer might ask can one explain the largely unreasoned rejection of documents as vague when they plainly were not and it’s not saying the appellants were Catholics when expressly or impliedly they did.

And how else does one explain not dealing with answers which revealed an apparently detailed knowledge of the Christian religion and the Christian faith when a conclusion is drawn that persons are not Christian based on weighing some answers to questions of less than central importance.  The answers to these questions might be that the tribunal lacked an appreciation of the need to weigh all the material.  If that were the case, it would itself support a conclusion of jurisdictional error.  The answer might also be the lack of an ability or willingness to deal with the material before it with a mind open to persuasion barely evaluating all the material.

14                  One sees in the Tribunal’s reasons a very comprehensive rehearsal indeed of the basis upon which the Appellant sought a protection visa and of the various statements which he had made both to the department and later to the Tribunal.  Having so done, under the heading “Findings and Reasons”, one finds in the Tribunal’s reasons what seems to me, as it seemed to the Federal Magistrate, a logical and reasoned analysis of the ramifications of particular inconsistencies there detailed by the Tribunal.  That analysis culminates in the following paragraphs in the Tribunal’s reasons which capture not only the bases of the Appellant’s claim for a protection visa but also why the Tribunal concludes that the claim lacks a factual foundation:

[83]      On the above evidence and for the above reasons, the Tribunal finds that the applicant is not a truthful witness and his statements, both to the Department and the Tribunal, lack credibility.  Also for the above reasons, and as the Tribunal has found that the applicant is not credible, the Tribunal also finds that the applicant:  was not a member of an underground church, was not involved with Mr Lin in religious activities, was not involved with a Mr Lin, who was or was claimed to be Taiwanese spy by Chinese authorities, did not provide “waste paper” with government stamps to Mr Lin, was not warned by Chinese authorities to not go to bible study meetings, was not advised by Chinese authorities to attend “big church”, was not arrested in August 2006, his shop was not searched and closed by police at the end of October 2006, and he did not go into hiding at the end of 2006. 

15                  Having made these findings, the Tribunal then found:

[84]      Although the applicant has knowledge of Christianity and may be a Christian, the Tribunal finds that he would not be persecuted in the reasonable foreseeable future if he returns to the Peoples Republic of China for his religious or imputed religious beliefs, as the Tribunal is not satisfied that the applicant is a member of an underground church.  Further, for similar reasons, the Tribunal finds that the applicant would not be persecuted in the reasonably foreseeable future if he returned to the Peoples Republic of China, his opinion or imputed political opinion, as the Tribunal is not satisfied that the applicant was involved with Mr Lin, who was or was claimed to be a Taiwanese spy by Chinese authorities or he provided “waste paper” with government stamps to Mr Lin.

16                  The findings which the Tribunal made were reasonably open to the Tribunal.  It is not the role of the Federal Magistrates Court, and much less is it the role of this Court, to make value judgments as to the factual merits of a claim for a protection visa, or in respect of the credibility of the applicant for such a visa.  A principled restraint is called for on the part of those exercising judicial power in relation to such matters in these types of cases.  Credibility findings are, in the ordinary course, findings of fact par excellence:  see Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 74 ALJR 405. 

17                  Again, it is evident from the Federal Magistrate’s reasons for judgment that his Honour adopted just such an approach.  Further, like his Honour, I do not apprehend from the Tribunal’s reasons any error on its part in applying the so-called “real chance” test.  In this regard, it suffices for me to endorse, respectfully, the observations made by the learned Federal Magistrate at para 20 of his reasons for judgment.  On the findings which the Tribunal made, it was quite reasonably open to conclude that the Appellant did not face a real chance of persecution were he to be returned to the Peoples Republic of China. 

Ground 3:  Unreasonableness and bias 

18                  In SZKLK v Minister For Immigration [2008] FCA 1125, I had occasion to review various authorities touching upon the administrative law error ground of bias.  I shall not repeat what is there stated.  One way in which a claim for bias might be made out, in a way which intersects with unreasonableness, is that stated in the passage which I have quoted from in NADH of 2001.  That basis is not made out here.  The conclusions reached by the Tribunal are objectively able to be seen as referable to logical consequences of credibility findings reasonably open to the Tribunal.  There is not a scintilla of evidence which would support a conclusion of actual bias on the part of the Tribunal.  However one approaches the case, the result is nothing more than a consequence of conclusions the Tribunal reached in light of inconsistencies that it found.  That result is undoubtedly disappointing to the Appellant, but again, I remind myself that it is no part of my role to descend into the merits of whether the claim should be accepted. There is no error, in my opinion, in the Federal Magistrates rejection of ground 3. 

19                  For completeness, reference should be made to the way in which the Tribunal dealt in its reasons with the Appellant’s practise of the Christian faith following his arrival in Australia.  At para 85 of its reasons, the Tribunal observed:

The applicant claimed that he attended church in Hurstville once a month.  However, in light of the tribunal’s finding that the applicant is not a truthful witness, and his statements, both to the department and to the tribunal, lacked credibility.  The tribunal also finds that the applicant has only attended this church in Australia to strengthen his claims to be a refugee in the meaning of the convention.  Therefore, pursuant to s 91R(3), the Tribunal is obliged to disregard the applicant’s attendance at the church in Australia.

20                  Though this was not advanced as a ground of appeal, the Minister very properly drew my attention to a recent decision of a Full Court, SZJGV v Minister for Immigration and Citizenship (2008) 247 ALR 451, which had considered the meaning and application of s 91R.  In that case, the Full Court construed s 91R(3) as capable of sensible application, only once primary findings of fact have been made.  In other words, conduct must first be shown to have taken place before it could be disregarded.  It is evident from the passage which I have quoted from the Tribunal’s reasons that conduct, namely attendance at church in Australia, was found.  The Tribunal was entitled to make the finding that it did concerning the motivation for that attendance.

21                  Further, the Tribunal was obliged, having made its findings, to disregard the attendance, and whatever ramifications it may have had in relation to a claim for a protection visa, in light of s 91R(3).  The Tribunal’s reasons do not disclose any error of the kind highlighted in SZJGV.

22                  For these reasons then, the appeal must be dismissed.

Associate:

Dated:         13 November 2008