FEDERAL COURT OF AUSTRALIA

SZLYK v Minister for Immigration and Citizenship [2008] FCA 1708

Migration Act 1958 (Cth) s 65(1)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 followed

Minister for Immigration and Multicultural Affairs v Eshetu (1998/1999) 197 CLR 611 followed

Buck v Bavone (1976) 135 CLR 110 cited

Attorney General (New South Wales) v Quin (1990) 170 CLR 1 cited

SZLYK v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD1338 of 2008

LOGAN J

12 NOVEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The Appellant is to pay the First Respondent’s costs of the appeal, which are fixed in the sum of $1,800.00.

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.  She came to Australia on 14 July 2007.  Later that month, on 26 July 2007, she lodged an application for what is known as a protection visa with the Department of Immigration and Citizenship.  The following month, on 10 August 2007, a delegate of the Minister for Immigration and Citizenship refused her application for a protection visa.  As was her right under the Migration Act 1958 (Cth), the Appellant then sought the review on the merits of that refusal decision by the Refugee Review Tribunal (the Tribunal).  On 12 December 2007, the Tribunal decided to affirm the refusal decision.

2                                             That decision and the Tribunal’s reasons for it were communicated to the Appellant’s authorised recipient by the Tribunal under cover of a letter dated 8 January 2008.  The Appellant in turn then sought the judicial review by the Federal Magistrates Court of the Tribunal’s decision.  On 6 August 2008, for reasons which were given that day, the Federal Magistrates Court dismissed her judicial review application. 

3                                             It is from the decision of the Federal Magistrates Court that the Appellant now appeals to this Court.  There are two grounds of appeal:

1.                  the decision involved an important exercise of the power conferred by the Migration Act and regulations; 

2.                  the Tribunal have no reasonable evidence to demonstrate that I do not have a well-founded fear of persecution for a Convention reason, should I return to China [sic].

4                                             The first of the grounds specified in the notice of appeal does not amount to a ground of appeal.  By that I mean that it does not in any meaningful way seek to challenge the decision of the Federal Magistrate.  Rather, I read that ground as the Appellant’s way of emphasising the importance of the decision which was made both by the Refugee Review Tribunal and then by the Federal Magistrate.  The second ground of appeal is not one which in terms was a ground of review in the application made to the Federal Magistrates Court.  It is, though, seemingly responsive to the way in which the Federal Magistrates Court dealt with a submission made orally by the Appellant in the proceedings before that Court. 

5                                             The Minister for Immigration and Citizenship, who is the First Respondent to this appeal, properly, did not challenge the right of the Appellant to pursue ground 2 in the notice of appeal.  If indeed the decision of the Federal Magistrates Court did involve an error in the way in which that Court had dealt with a challenge on the basis of reasonableness to the Tribunal’s decision, that ground could be pursued even though not raised as a ground of review.  Instead, the Minister submitted that even approaching the ground as I have described, there was no merit in the challenge to the Magistrate’s decision. 

6                                             In her oral submissions the Appellant made the following points: firstly, she asked rhetorically “how can I go back to China to get evidence?  If I could I wouldn’t be coming here”.  Secondly, she submitted that the Federal Magistrate was in error because the finding had not been made that the Refugee Review Tribunal was wrong because the Tribunal did not have evidence to prove that she was not a Falun Gong practitioner and feared persecution. 

7                                             It is necessary in light of the submissions made by the Appellant to highlight features of the Migration Act in relation to the granting of a protection visa and also to highlight the role consigned to the courts when a challenge is made on judicial review to a decision made in respect of the granting of a protection visa. 

8                                             In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at pages 272-275, in the joint judgment of Brennan CJ and Toohey, McHugh and Gummow JJ, one finds a definitive exposition of the nature of the decision for which the Migration Act then and presently provides in relation to the granting of a protection visa.  In that joint judgment, at pages 274 and 275, the following passage appears:

it is inappropriate to describe a decision refusing refugee status as a decision not to determine that the person is a refugee.  Rather, it is a decision that the Minister is not satisfied that the person has a genuine fear founded on a real risk of persecution.  This is the ‘decision’ for which provision is made by the Act.

9                                             Later, in Minister for Immigration and Multicultural Affairs v Eshetu (1998/1999) 197 CLR 611 at 647, paragraph 119 Gummow J remarked of s 65(1) of the Migration Act that that section:

imposed on the Minister an obligation to grant or to refuse to grant a visa, rather than a power to be exercised at discretion.  The Minister’s satisfaction was an anterior matter, being a component of the condition precedent to the discharge of the obligation to grant or refuse the visa. 

10                                          The references in the passages which I have quoted to the Minister, apply equally to the Tribunal, which under the Migration Act sits in the place of the Minister when conducting its merits review function. 

11                                          As was stated in the joint judgment in Wu Shan Liang at page 275, it is no longer the case that a decision as to satisfaction is unreviewable.  Authorities at ultimate appellate level, and Wu Shan Liang at page 275 to 276 is an example, have emphasised remarks made by Gibbs J, as his Honour then was, in Buck v Bavone (1976) 135 CLR 110 at pages 118-119, in respect of the bases upon which a satisfaction based decision is amenable to judicial review.  One basis adverted to by Gibbs J is that:

if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it.

12                                          Having referred to this particular passage from Buck v Bavone in Eshetu’s case, Gummow J, at page 654 para 137, observed of it that it was:

consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question.

13                                          His Honour added:

It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.

14                                          It is with these principles in mind that I approach consideration of ground 2 in the appeal.  When one looks to the findings and reasons of the Tribunal, see pages 86 and 87 of the Appeal Book, one sees that the Tribunal came not to be satisfied that the Appellant was a person to whom Australia owed protection obligations under the Refugee Convention because of a view reached by the Tribunal as to the Appellant’s credibility in relation to the claim which she made.   The Tribunal referred to a lack of apparent knowledge of Falun Gong practice and belief on the part of the Appellant during her evidence at the hearing conducted by the Tribunal. 

15                                          The Tribunal also referred to the Appellant’s ability freely to travel to and from Singapore to the People’s Republic of China on two and perhaps even three occasions.  The Tribunal referred to this travel pattern as being inconsistent with a fear of persecution if the Appellant returned to China. 

16                                          In the Federal Magistrates Court, the learned Magistrate approached the matter on the basis that the findings made by the Tribunal were open to the Tribunal on the material before it for the reasons which the Tribunal gave; see para 22.  Earlier in the reasons of the Federal Magistrates Court the following passage appears, referable to a submission similar in kind to that advanced today, which was the rhetorical asking of a question, what kind of evidence did the Tribunal have to say that the appellant was not a genuine Falun Gong practitioner or not telling the truth:

In so far as this may be taken as a contention that the Tribunal was under an obligation to accept the applicant’s claims or as a suggestion that the proceedings before the Tribunal were adversarial, as pointed out by Gummow and Hayne JJ in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187]: “Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor.  It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason.”  The Tribunal must then decide whether that claim is made out (also see Kirby J in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [78], indicating that:  “The function of the Tribunal … is to respond to the case that the applicant advances”). As Beaumont J stated in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 the Tribunal is not required to engage in an uncritical acceptance of any and all allegations made by an applicant and it is not required to accept a claim merely because positive evidence to the contrary is absent.

17                                          I respectfully agree with everything stated by the Federal Magistrate in the passage which I have quoted.  It is very important in a case like this for Magistrates, and in turn Judges on appeal, firmly to bear in mind the limits of judicial review.   A principled restraint is called for.  That proposition was stated and has frequently been emphasised thereafter in Attorney General (New South Wales) v Quin (1990) 170 CLR 1 at 35-36, per Brennan J, as his Honour then was.  A hearing before the Tribunal in respect of an application for a protection visa is not an examination in theology.  Nonetheless, in this particular case and bearing in mind the limits of reasonableness as a ground of challenge, and also inferences reasonably open in relation to the Appellant’s travel pattern, the conclusions reached by the Tribunal were open.  I discern no error in law in the Federal Magistrates Court so concluding.

18                                          That being the case, the appeal must be dismissed. 

Associate:

Dated:         14 November 2008