FEDERAL COURT OF AUSTRALIA

SZMAE v Minister for Immigration & Citizenship [2008] FCA 1701

SZMAE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1268 of 2008

EDMONDS J

18 NOVEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs.

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

Introduction

1                     This is an appeal from a judgment of the Federal Magistrates Court, given on 22 July 2008, dismissing an application for review of a decision of the second respondent (‘the Tribunal’): SZMAE v Minister for Immigration and Citizenship & Anor [2008] FMCA 979.

Background

2                     The appellant is a citizen of China, who arrived in Australia on 29 May 2007 and applied for a protection visa on 11 July 2007.  The appellant’s claims were set out in a statutory declaration attached to her protection visa application.  A delegate of the first respondent (‘the Minister’) refused the appellant’s application on 3 September 2007.

3                     On 28 September 2007, the appellant applied to the Tribunal for review of the Minister’s decision.  On 16 November 2007, the appellant attended a hearing of the Tribunal at which she gave evidence.

4                     The appellant claimed to have a well-founded fear of persecution in China due to her religion as a member of the Local Church or ‘Shouter’ Christians.  In summary, she claimed to have begun attending bible study classes with members of the Local Church in January 2006, and to have been baptised in May 2006.  The appellant claimed that she was detained by the Public Security Bureau (‘the PSB’) for a period of ten days in February 2007, during which time she was interrogated and beaten.  Following her release, the appellant claimed that she, together with two other members of the Local Church, organised, drafted and distributed 10,000 leaflets calling on the Chinese authorities to protect religious freedom and to release Christian leaders, including the leader of the appellant’s group, from prison.  The appellant departed China when she believed that the authorities would take steps against her.  The appellant claimed that since her departure, the PSB had searched her home and questioned her husband about her activities.

The Tribunal Decision

5                     On 5 February 2008, the Tribunal handed down a decision affirming the decision of the Minister refusing the appellant’s application.  The Tribunal found that the appellant’s evidence lacked specific detail, and was at times vague and contradictory.  It also noted that the appellant had submitted no supporting documents to substantiate her claims.  In particular, the Tribunal found as follows:

(1)               The appellant’s evidence regarding the founder and organisational structure of the Local Church was hesitant and vague.

(2)               The appellant’s inability to provide details of the location of a secret religious meeting house was unconvincing; especially in circumstances where she claimed to have attended the house three times per week.

(3)               The appellant’s claim that her husband drove her and her child to the meeting house three times per week was implausible given the distance and time involved.

(4)               The appellant’s claim to have undergone a single baptism was inconsistent with country information that Shouters promote multiple baptisms and, accordingly, it did not accept she had been baptised in the Local Church.

(5)               Given the large number of leaflets involved, it was unconvincing that the appellant could not recall the contents, cost or mode of distribution of a leaflet she claimed to have drafted and distributed.

(6)               The appellant’s claim that she was a member of the Shouter Church or had been recognised as a Christian in China was not accepted.  Similarly, her claim that she had been involved in the printing and distributing of illegal religious material, been engaged in any illegal religious activity in China or that she had been detained was also rejected, as was the appellant’s account of the arrests of others she claimed to have known.

(7)               The appellant’s evidence that she had been involved in religious activities in the Local Church in Australia was also not accepted.

6                     Accordingly, the Tribunal was not satisfied that the appellant held a well-founded fear of persecution for a Convention reason or that she was a person to whom Australia has protection obligations under the Convention.

The Decision of the Federal Magistrates Court

7                     The proceedings in the Federal Magistrates Court were commenced by application filed on 3 March 2008.  The application set out four grounds of review.

8                     The first ground of review was an unspecified assertion that there was an error of law in the Tribunal’s decision.

9                     The second ground asserted a procedural error in the Tribunal’s decision, being a breach of natural justice.  This ground contained lengthy particulars that asserted a breach of s 424A of the Migration Act 1958 (Cth) (‘the Act’).  The information said to give rise to the obligation in that section was, in summary, the inconsistency between the appellant’s evidence that she had been baptised once and country information that the Shouters promote multiple baptisms and, secondly, a lack of documentary evidence to substantiate the appellant’s claims.  The appellant also asserted under this ground that the Tribunal failed to consider her evidence properly and failed to give her the benefit of the doubt.

10                  The third ground (also numbered two) asserted a reasonable apprehension of bias on behalf of the Tribunal.  The matters identified in the application as demonstrating bias, were the Tribunal’s statement that there was a lack of documentary evidence to substantiate her claims and the evidence regarding multiple baptisms.

11                  The fourth ground (numbered three) asserted that the appellant’s application had not been considered fairly and properly.

12                  Her Honour considered in detail the findings of the Tribunal, and did not accept the appellant’s summary of the Tribunal’s findings (at [20] – [27]).  Her Honour then considered the grounds raised by the appellant and dismissed each in turn.

Ground One - Procedural Breaches

13                  Her Honour found no breach of s 424A of the Act.  Her Honour held that country information did not constitute information for the purposes of s 424A (at [31] – [44]) as it falls within the statutory exception contained in s 424A(3)(a) of the Act, referring to QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 and VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178.  Her Honour also held that inconsistencies and lack of detail in evidence did not constitute ‘information’ for the purposes of s 424A.  Therefore, neither the inconsistencies between the appellant’s evidence and country information, nor a lack of documentary evidence constituted ‘information’ engaging the obligation under the section (at [38] – [41] and referring to, inter alia, SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609).

14                  Her Honour considered whether the appellant’s general assertion of a failure to fairly provide the appellant an opportunity to comment on the alleged ‘information’ might give rise to a breach of s 425 of the Act (at [45] – [53]).  Her Honour considered the decisions of both the Minister and the Tribunal and held that the issues arising in relation to the decision under review were clearly raised with the appellant and no breach of s 425 arose, referring to SZBEL v Minister for Immigration & Multicultural Affairs (2006) 228 CLR 152.

15                  Her Honour held that the Tribunal had understood the nature of the appellant’s claims, had considered the appellant’s evidence properly, and had made findings of fact open to it on that evidence (at [54] – [56]).

16                  Her Honour also rejected the appellant’s assertion that the Tribunal had failed to give the appellant the benefit of the doubt.  While noting the Tribunal did not specifically refer to the difficulties an applicant may face in obtaining documentary evidence, the Tribunal’s findings were not based solely on this finding and her Honour concluded that the Tribunal did not err as asserted (at [57] – [61]).

Ground Two - Apprehended Bias

17                  Her Honour rejected the appellant’s claim of apprehended bias (at [63] – [71]), finding that the particulars asserted did not provide any basis for such a claim.  Her Honour noted that the appellant had not filed any transcript that could have identified the basis of the allegation and held there was nothing on the face of the Tribunal decision to show any apprehension of bias: Refugee Review Tribunal; Ex parte H & Anor (2001) 179 ALR 425.

Ground Three - Failure to Consider Claims Properly or Fairly

18                  Her Honour rejected the appellant’s assertion that the Tribunal did not consider her claims properly or fairly, relying on the reasons given for her findings in respect of the previous grounds.  Her Honour also rejected the appellant’s oral submissions to the extent that these asserted that the Tribunal was required to provide contrary evidence before rejecting the appellant’s claims (at [72] – [78]).

19                  Accordingly, her Honour found no jurisdictional error in the Tribunal decision and dismissed the application (at [79]).

Appeal to this Court

20                  By Notice of Appeal filed on 12 August 2008, the appellant appeals from the whole of the Federal Magistrate’s judgment.  The Notice of Appeal contains seven numbered paragraphs that equate to three grounds of appeal.

The Minister’s Submissions

21                  The Minister submitted that the Notice of Appeal does not identify any legal error in the decision of the Federal Magistrate.  The reasons of the Federal Magistrate reveal that her Honour dealt with the grounds of the application without legal error and was correct in finding no jurisdictional error in the Tribunal’s decision.  I agree.

Ground One (Paragraphs 1 - 5 of the Notice of Appeal)

22                  The Minister observed that the first ground of appeal, a breach of s 424AA of the Act, was not raised in the court below, the appellant has provided no explanation for not doing so, and has not sought leave to raise this ground on appeal.  The Minister further observed that the appellant provided no particulars of the asserted breach of s 424AA.  In the absence of particulars, there is no merit in the asserted ground and the Minister submitted that leave should not be granted for the appellant to raise this new ground on appeal.

23                  In any event, the Minister submitted that no jurisdictional error arises.  Section 424AA itself imposes no obligation upon the Tribunal.  It provides an alternative means by which the Tribunal may give to the applicant ‘information’ that it is otherwise required to give in writing pursuant to s 424A(1) of the Act.  A jurisdictional error will only arise if there is a breach of s 424A (SZLXI v Minister for Immigration & Citizenship [2008] FCA 1270 at [23] – [28], SZLWI v Minister for Immigration & Citizenship [2008] FCA 1330 at [17] – [21], SZLQD v Minister for Immigration & Citizenship [2008] FCA 739 at [12]).  There was no ‘information’ for the purposes of s 424A(1), and s 424AA was not engaged.  I agree with these submissions.

Ground Two (Paragraph 6 of the Notice of Appeal)

24                  This ground merely asserts a breach of s 424A of the Act without identifying any error in her Honour’s judgment.

25                  It is submitted that the Federal Magistrate was correct to find that the particulars referred to by the appellant were not ‘information’ for the purposes of s 424A of the Act and no breach of the section arose.

26                  It is well established that country information falls within the exception of s 424A(3)(a) and does not give rise to any obligation under s 424A(1): Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572 at [124] – [138]; QAAC [2005] FCAFC 92, VJAF [2005] FCAFC 178 at [14] – [16].  Nor do inconsistencies or a lack of detail or evidence constitute information for the purposes of s 424A: SZBYR (2007) 235 ALR 609 at 615.

27                  The reasons of the Federal Magistrate reveal that her Honour dealt with the asserted breach of s 424A without legal error.

Ground Three (Paragraph 7 of the Notice of Appeal)

28                  This ground effectively restates the appellant’s third ground raised in the court below without identifying any error in her Honour’s decision.

29                  The Federal Magistrate was correct to find there was no failure by the Tribunal to consider the appellant’s claims fairly or properly (or carefully).  The Minister submitted that it is apparent from the Tribunal’s reasons for decision that it considered the appellant’s claims and evidence and, as her Honour found, it complied with the procedural requirements of the Act.  To the extent that the appellant asserted in oral submissions in the court below that the Tribunal was required to possess contrary evidence before holding her claims not to have been made out, there was no error in the Federal Magistrate’s finding there was no such obligation on the Tribunal.  The Minister submitted that it was for the appellant to satisfy the Tribunal of the statutory requirements for the grant of her visa and the Tribunal was not required to have contrary evidence before not accepting a particular factual assertion made: Minister for Immigration, Local Government & Ethnic Affairs v Guo (1997) 191 CLR 559 at 579, Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 348.

Appeal Hearing

30                  On the hearing of the appeal, the appellant raised three matters:

(1)               That the country information relied on by the Tribunal was not relevant to her particular case – this goes to the inconsistency between the appellant’s evidence that she had been baptised once and country information that the Shouters promote multiple baptisms;

(2)               that the Tribunal had manifested a bias in handling her application; and

(3)               that, in any event, the country information relied on was wrong.

31                  Even if matters (1) and (3) could be established, they would not give rise to jurisdictional error on the part of the Tribunal.  Matter (3) was not particularised; no transcript of the Tribunal hearing was available and no bias is manifest of the face of the Tribunal’s reasons for decision.  Her Honour was correct in rejecting the appellant’s similar claim below: see [17] above.

Conclusion

32                  The appeal must be dismissed, with costs.

Associate:

Dated:         18 November 2008