FEDERAL COURT OF AUSTRALIA

SZLWF v Minister for Immigration and Citizenship [2008] FCA 1734

Migration Act 1958 (Cth) ss 36, 65, 65A, 422B, 424, 424A

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 applied

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

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

Minister for Immigration and Multicultural Affairs v Eshetu (1998-99) 197 CLR 611 followed

Buck v Bavone (1976) 135 CLR 110 cited

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

SZLWF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD1145 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 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 25 July 2007.  The following month, on 20 August 2007, he lodged with the Department of Immigration and Citizenship an application for what is known as a protection visa. On 3 September 2007, a delegate of the Minister for Immigration and Citizenship, who is the First Respondent to this appeal, decided to refuse that application.  As was his right under the Migration Act 1958 (Cth), the Appellant then sought the review of the Minister’s delegate’s decision by the Refugee Review Tribunal (the Tribunal).  On 16 November 2007, the Tribunal decided to affirm the decision not to grant to the Appellant a protection visa. 

2                     That decision and the reasons for it were communicated by the Tribunal to the Appellant under cover of a letter dated 6 December 2007.  The Appellant then sought the judicial review of the Tribunal’s decision by the Federal Magistrates Court.  On 2 July 2008, for reasons given that day, the Federal Magistrates Court dismissed that judicial review application.  

3                     The Appellant now appeals to this Court from that order of dismissal.  There are three grounds specified in the notice of appeal.  Those grounds are as follows:

1.                  the Tribunal Member did not ask proper questions in relation to Applicant’s claim for a protection visa;

2.                  the Applicant was denied procedural fairness in connection with the making of the decision; 

3.                  it is not reasonable for the Tribunal to point out that I was not a Falun Gong practitioner. [sic]

4                     In terms, these grounds read as if they are a challenge to the decision of the Tribunal, as opposed to bases upon which it is said that the decision of the Federal Magistrates Court was in error.  The approach though which I have taken is to treat the grounds as bases upon which the Appellant contends that the Federal Magistrate ought to have and in error did not set aside the decision of the Refugee Review Tribunal.  I shall consider each of those grounds in turn. 

Ground 1, failure to ask ‘proper questions’

5                     The way in which this ground was developed in the oral submissions of the Appellant did not amount to a challenge that the conduct of the Tribunal in the proceedings was such as not to have given him a hearing according to law.  Neither, in the way in which the argument developed, was there a contention that the Tribunal’s conduct in the course of the hearing, arising from the way in which questions were asked, gave rise to a reasonable apprehension of bias on the part of the Tribunal.  An argument that the Tribunal Member had not asked ‘proper questions’ seems to have been developed also in the Federal Magistrates Court.  Insofar as, in that court, the argument had the flavour of inviting the Tribunal to make its own inquiries and a supposed error on the part of the Tribunal in not so doing, the learned Federal Magistrate correctly apprehended, having regard to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, that the Tribunal is under no obligation to make its own inquiries.

6                     The Appellant made reference to a question which the Tribunal had asked him in relation to his travel to Japan.  It seems though that his complaint is not so much with the question as with the use the Tribunal came to make of the answer that he provided and, for that matter, of the fact of his travel and being able to travel. 

7                     As developed in oral submissions, there is no substance in ground 1 of the appeal grounds.  Insofar as there is complaint about the use made by the Tribunal of the Appellant’s answers, that use and whether or not the Magistrate erred in failing to find any error is best considered in the context of ground 3. 

Ground 2, alleged denial of procedural fairness

8                     The unfairness complained of in oral submissions was unfairness, so the Appellant believes, in the way in which the Tribunal came to deal with the basis of his claim for a protection visa.  Section 422B(1) of the Migration Act 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 with which it deals.  In other words, the procedural fairness content of a review hearing in respect of matters specified in Div 4 of Pt 7 is exhaustive. 

9                     Doubtless with that in mind, and very properly, the submissions made on behalf of the Minister, if only out of an abundance of caution, directed my attention to particular features of the way in which the Tribunal had conducted the hearing and the steps leading up to the hearing.  On 15 October 2007, the Tribunal sent to the Appellant an invitation to comment on information in writing.  That letter invited comment upon the inferences which might arise with respect to the Appellant’s credibility from his ability to travel to Japan.  It also drew attention, again in relation to inferences that might arise in relation to credibility, from the granting to the Appellant on his initial application of a short stay business visa upon which he came to enter Australia, with his application for a protection visa being lodged thereafter.

10                  The nature of the obligation cast on the tribunal by s 424A was definitively considered in the joint judgment of Gleeson CJ and Gummow, Callinan, Hayden and Crennan JJ in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190, especially at paras 15, 17 and 18.  Since then s 424A(3) has been amended so as to insert paragraph (ba) into that subsection.  It is in that amended form that s 424A had application to the proceedings before the Tribunal.  Having regard to the exceptions for which s 424A(3) provides, it may very well be that the Tribunal, insofar as it was thought that s 424A provided an obligation for the dispatch of the letter of 15 October 2007, went further than strictly the statute required.  That though is hardly a basis for criticism of the Tribunal.  Further, insofar as the letter sought information from the Appellant, s 424(2) provided ample authority for the Tribunal so doing. 

11                  Judging by the course of proceedings at the hearing the Tribunal conducted, insofar as the same is revealed in the Tribunal’s reasons, it seems that the Tribunal gave to the Appellant a fair opportunity to comment, in the course of his appearance and evidence before the Tribunal, about the concern articulated in the letter of 15 October 2007.  I am therefore satisfied that there is no substance in the procedural fairness challenge, as it has been termed. 

Ground 3, unreasonableness

12                  It is necessary to say something of the basis upon which the Appellant made his claim for a protection visa.  His claim was based on the allegation that he was a Falun Gong practitioner and one of the leaders of the Falun Gong organisations in his home city.  In amplification of that claim he stated that he had been detained by the police for almost six months, during which time, so he stated, he was tortured and forced to declare separation from the Falun Gong movement.  His claim was that he feared that this particular detention and torture would happen again if he continued to participate in Falun Gong activities and demonstrations.  He stated that he had, through the use of his friends in the government, applied for and obtained a passport and a visa.  During the course of the hearing before the Tribunal, the Appellant also claimed that he had been part of the 1989 activities in Tiananmen Square and that he was a pro-democracy advocate. 

13                  The long and the short of it, so far as proceedings before the Tribunal were concerned, is that the Tribunal, in reasons which it gave at some length, did not believe these claims.  The Tribunal made reference to what it described as the Appellant’s “confused and inconsistent evidence” and the fact of his involvement in the 1989 pro-democracy movement emerging for the first time in the course of the hearing.  The Tribunal also articulated no less than 11 bases upon which it concluded that the Appellant had not been truthful in relation to the claim he made insofar as it related to membership of and activities concerning the Falun Gong movement. 

14                  The Appellant today argued his case, in relation to reasonableness and fairness of the Tribunal proceeding and the error he apprehended the Federal Magistrate made in not accepting that the findings were unreasonable, with considerable conviction and dignity.  Out of deference to the argument made by the Appellant, it is necessary to make some particular observations about the role of the Federal Magistrates Court in conducting judicial review proceedings in respect of a Tribunal decision concerning a protection visa.

15                  In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at page 274 and 275, in the joint judgment of Brennan CJ and Toohey, McHugh and Gummow JJ, the following observations were made in relation to the Migration Act as it had come to be amended and in the form in which in substance it presently remains, so far as the granting of a protection visa is concerned:

The grafting of what might be seen as the Chan test on to the new statutory power to make refugee status determinations reveals the true nature of the Minister’s decision-making function in the present case.  That is that if the Minister is satisfied that a person has a genuine fear, founded upon a real risk of persecution, then the Minister may determine in writing that the person is a refugee.  A condition of determination is the Minister’s satisfaction.  Accordingly, it is inappropriate to describe a decision refusing refugee status as a decision not to determine that the person is a refugee but rather it is a decision that the Minister is not satisfied that the person has a genuine fear founded upon a real risk of persecution.  That is the ‘decision’ from which provision is made by the Act. 

16                  Later in time but to similar effect are observations made concerning s 36 and s 65 of the Migration Act by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1998-99) 197 CLR 611 at 647 paragraph 119, where his Honour observed, making reference to s 65A(ii) in so doing:

The reference in subparagraph (a)(ii) to other criteria drew in for the present case section 36.  It will be noted that section 65(1) 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.

17                  The Federal Magistrates Court was therefore conducting the judicial review of a decision based on a state of satisfaction.  The Tribunal, standing as it did in the place of the Minister, was empowered, all other things being equal, to grant a protection visa if the Tribunal was satisfied that the Appellant was a non-citizen in Australia to whom the Tribunal was satisfied Australia had protection obligations under the Refugee Convention as amended by the Refugee Protocol, see s 36(2)(a) of the Migration Act. 

18                  As was observed in Wu Shan Liang at page 275, it is no longer the case that a decision as to satisfaction is unreviewable.  In that case, at 275 to 276, as in subsequent cases at ultimate appellate level, attention was drawn in relation to the reviewing of satisfaction-based decisions, to observations made by Gibbs J, as his Honour then was, in Buck v Bavone (1976) 135 CLR 110 at pages 118-119.  In the course of those observations Gibbs J had stated that the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it.  In Eshetu’s case, at page 654 para 137, having referred to the observations of Gibbs J in Buck v Bavone, Gummow J added:

This passage is 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. 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.

19                  It is, therefore, by no means impossible to conceive of a basis upon which a satisfaction-based decision of the kind committed to the Tribunal was amenable to judicial review.  Ground 3, as I understand it, seeks to engage just such a ground or more accurately to allege that the Federal Magistrates Court ought to have found such a ground to have been made out.  As the statement made by Gummow J in Eshetu highlights, however, where the satisfaction-based question is one upon which reasonable minds might reasonably differ, it is very difficult indeed to challenge a satisfaction-based decision on an unreasonableness ground. 

20                  Further, as has been often observed in relation to appeals of this kind, findings of credibility are par excellence findings of fact.  They are findings uniquely within the province of the Tribunal to make.  Of course, if there is some element of illogicality in the finding, then jurisdictional error might be shown.  The difficulty is that in this case the findings which the Tribunal has made are findings which, however much and however genuinely the Appellant disagrees with them, are findings that it was reasonably open for the Tribunal to make.  In those circumstances it is necessary for judicial officers conducting judicial review in the Federal Magistrates Court, or those in this Court hearing appeals, to remind themselves of the limits of the role consigned to the courts in judicial review.

21                  Those limits were eloquently and definitely stated by Brennan J, as his Honour then was, in Attorney General (New South Wales) v Quin (1990) 170 CLR 1 at 35 to 36.  In short, a principled restraint is called for, lest judicial review lose it legitimacy and descend impermissibly into a review on the merits.  The Federal Magistrate, in my opinion, properly apprehended those limits in deciding that the conclusions of fact reached by the Tribunal were reasonably open, and having so done, in finding that a reasonableness based challenge was not made out.  Ground 3 must therefore fail. 

22                  In light of that, the appeal must be dismissed. 

Associate:

Dated:         19 November 2008