FEDERAL COURT OF AUSTRALIA

SZMEW v Minister for Immigration and Citizenship [2008] FCA 1817

SZMEW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1471 of 2008

MIDDLETON J

20 NOVEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the costs of the first respondent fixed at $2,400.00.

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                     This is an appeal against a judgment of a Federal Magistrate of 27 August 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) of 1 April 2008.  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 China who arrived in Australia on 2 September 2007.  On 16 October 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 15 November 2007.  On 14 December 2007 the appellant applied to the Tribunal for a review of that decision.

3                     The appellant claimed that a colleague had been killed on a work site in Beijing in the course of his employment.  The appellant claimed that he pressed the employer for a thorough investigation into the circumstances of his colleague's death.  The appellant claimed that after this request for a thorough investigation he was unexpectedly arrested by the police and alleged to have incited an anti-government movement in order to destroy a key project for the 2008 Olympic Games and that he was detained for some three weeks.  He claimed that during every interrogation he was mistreated and tortured.  The appellant claimed that he signed a confession about his anti-government movement and promised to return to his hometown and not to pursue enquiries about the death of his colleague.

4                     He further claimed that he could not forget his colleague's death and that in June 2007 (after he recovered from an illness) he returned to Beijing and drafted petitions against the Communist dictatorship.  He returned to his home town in August 2007 and his wife obtained a visa for him and arranged for him to leave China with the assistance of a friend in the Public Security Bureau (‘PSB’).  The appellant also claimed that some ten days after he left China his friend was discovered by authorities in the People’s Republic of China and arrested, and that the appellant has been targeted by the authorities, with his wife, family members and friends being questioned and his house searched.

TRIBUNAL DECISION

5                     The Tribunal found that because of significant inconsistencies between his evidence given at particular times, and because the Tribunal did not accept the various explanations he gave for the inconsistencies, the Tribunal did not accept any of the appellant's claims as it did not accept he was a witness of truth.

THE FEDERAL MAGISTRATES COURT

6                     Before the Federal Magistrate, the appellant claimed that the Tribunal:

·                    failed to consider his claims impartially, and was affected by apprehended bias;

·                    failed to comply with s 424AA of the Migration Act 1958 (Cth) (‘the Act’);

·                    failed to comply with s 424A(1) of the Act; and

·                    failed to consider the evidence before it properly and fairly.

7                     The appellant appeared in person at a hearing before the Federal Magistrate.  In her reasons for judgment, the Federal Magistrate summarised the appellant’s claims, the Tribunal’s findings and addressed each ground raised in the application for judicial review.

8                     The first ground of the application alleged that the Tribunal failed to consider the claims impartially and raised apprehended bias.  The Federal Magistrate found that there was nothing in the conduct of the Tribunal proceedings to support the contention of apprehended bias.  A finding of apprehended bias requires evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal member may not have brought an ‘impartial mind to the resolution of the question to be decided’: see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, 434-35 at [27]-[32].  

9                     Her Honour noted that it was well-established that no inference of bias or prejudgment can be drawn from the mere fact that the Tribunal has made adverse findings: see VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102, 107 at [21]; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].  Further, the decision record indicated that the appellant was provided with an opportunity to give evidence and to respond to the concerns the Tribunal had with his evidence at the hearing, which occupied nearly three hours of time. Additionally, the appellant was provided with a s 424A letter which invited him to comment on the perceived inconsistencies in his evidence.

10                  In relation to the appellant’s claims that the Tribunal failed to consider that he was under pressure at the Department interview, and that he was unable to communicate with the immigration officer and did not understand the questions, her Honour found that this could not be established.  Her Honour found that the Tribunal clearly considered these complaints which were raised in the response to the s 424A letter.

11                  Further, her Honour found that there was also no evidence before the court to support any claim that the appellant was incapacitated and unable to participate in the Tribunal hearing, such that the invitation could be considered not to be ‘real and meaningful’.  Her Honour concluded that the first ground had not been made out.

12                  The second ground alleged that the Tribunal failed to comply with s 424AA in regard to the independent country information that stated that workers can complain to the Labour Bureau.  Her Honour found that no obligation arose pursuant to s 424AA to disclose that information and there was no jurisdictional error in this regard.  Her Honour accepted that s 424AA does not impose any obligation on the Tribunal, but creates a means of compliance with s 424A, and ‘does not compel the Tribunal to orally give an applicant any particulars of country information which it intends to rely on’: see SZLQD v Minister for Immigration and Citizenship [2008] FCA 739 at [12].  Accordingly no obligation arose under s 424AA in respect of this ‘information’ and the second ground was not made out.

13                  The third ground of the application alleged a breach of s 424A of the Act in respect of the same ‘information’.  Her Honour found that the country information in question fell within the exception to the s 424A(1) obligation in s 424A(3)(a) of the Act.

14                  In so far as the ground alleged a broader complaint about s 424A, her Honour found that there was no basis for contending that any breach of s 424A of the Act was committed by the Tribunal.  Her Honour noted that after the hearing, the Tribunal sent to the appellant’s representative a letter referring to evidence given by the appellant at the hearing before the delegate and Tribunal and also referring to information derived from the appellant’s protection visa application.  That letter explained the significance of that information and invited the appellant to comment on it. 

15                  In any event, her Honour noted that in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, 616 at [18], a majority of the High Court approved the statement of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477, that the word ‘information’:

… does not encompass the tribunal’s subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps …

16                  Her Honour found that, to the extent the s 424A invitation put matters to the appellant that were not in fact ‘information’, the Tribunal did not fall into jurisdictional error.  Her Honour concluded that no breach of s 424A had been established.

17                 The fourth ground of the application asserted that the Tribunal failed to consider the evidence before it ‘properly and fairly’ as it incorrectly relied on independent country information relating to the Labour Bureau.  Her Honour found that the Tribunal was entitled to refer to independent country information and the choice and assessment of country information was a factual matter for the Tribunal.  Accordingly, no jurisdictional error was established in respect of this ground.

THE PRESENT APPEAL

18                  In the notice of appeal filed on 17 September 2008, the appellant raises substantively the same grounds which were before the Federal Magistrate; namely:

·                    The Tribunal decision was affected by bias;

·                    The Tribunal failed to comply with s 424AA of the Act;

·                    The Tribunal failed to comply with s 424A of the Act; and

·                    The Tribunal failed to consider the evidence properly and fairly

19                  At the hearing of the appeal the appellant submitted that the decision of the Tribunal was based on incorrect information and the factual position in China.  He submitted that the Tribunal had no understanding of the position in fact existing in China.

20                  The appellant further contended that the Tribunal was biased and the Tribunal failed to take into account the appellant’s special circumstances, including his need for a translator and the complicated nature of his circumstances in China.

21                  The Tribunal decision was essentially based on the view that the Tribunal took of the facts, in particular, its finding that the appellant was not a credible witness given the significant inconsistencies in his evidence.  As the sole arbiter of the facts, such findings were open to the Tribunal to make on the materials before it and were within its jurisdiction: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) FCR 547 at 558-59; W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 per Tamberlin and R D Nicholson JJ at [64]-[69].  The fact that the appellant is displeased with the conclusions of the Tribunal is not indicative of jurisdictional error: Minister for Immigration and Multicultural and Indigenous Affairs v Wu Shang Liang (1996) 185 CLR 259 at 272.

22                  The appellant has not sought in any meaningful sense to review the approach and decision of the Federal Magistrate or to particularise any jurisdictional error on the part of the Tribunal.  The reasons of the Federal Magistrate indicate a comprehensive examination of the appellant’s case and reveal no error.  I cannot usefully add anything to the analysis undertaken.

23                  As I have indicated, the appellant’s notice of appeal and submissions before me essentially repeat the grounds raised in the Federal Magistrates Court, and make no attempt to identify any error in the reasons of the Federal Magistrate.  I can identify no error in the approach of the Federal Magistrate or the Tribunal.

CONCLUSION

24                  In my opinion, the approach of the Federal Magistrate and her Honour's conclusions were correct.

25                  The appeal should be dismissed.

Associate:

Dated:         1 December 2008