FEDERAL COURT OF AUSTRALIA

SZMLR v Minister for Immigration and Citizenship [2008] FCA 1853

SZMLR and SZMLS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1499 of 2008

SPENDER J

25 NOVEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The first and second appellant pay the costs of the first respondent 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                     This is an appeal from orders made by Federal Magistrate Driver in the Federal Magistrates Court on 4 September 2008.  The two appellants are husband and wife.  They are citizens of the People’s Republic of China from Fujian province.  They arrived in Australia on 9 October 2007 and applied for protection (class XA) visas on 23 November 2007. 

2                     The first appellant claims that he has fears of persecution for reason of his political opinion.  The details of that claim need not be set out here.  The second appellant relied on her membership of her husband’s family. 

3                     On 29 January 2008, a delegate of the Minister refused the applications of both appellants.  On 29 February 2008, they filed an application for review of that decision with the Refugee Review Tribunal (the Tribunal).  On 7 May 2008, the appellants attended a hearing before the Tribunal, and at that hearing, the Tribunal put to the first appellant that a number of aspects of his evidence were implausible. 

4                     In its decision of 22 May 2008 (handed down on 3 June 2008),  the Tribunal affirmed the delegate’s decision and made a finding that the first appellant’s claims were fabricated in order to support the application for a protection visa. 

5                     The appellants applied to the Federal Magistrates Court relying on an Amended Application filed on 4 September 2008.  The two grounds that were raised before the Federal Magistrates Court were:  first, the Tribunal committed jurisdictional error by taking the view that it was prevented by law from considering any claims for protection advanced by the applicant wife; and secondly, the Tribunal did not give the applicants a proper hearing as required by s 425 of the Migration Act 1958 (Cth) (the Act). 

6                     The Court found against the appellants on each ground.

7                     In respect of the first ground, the Court found that the wife’s claim was not separable from the applicant’s claim: her fears arose from her husband’s political opinion and the Tribunal rejected the husband’s application on credibility grounds. 

8                     The appellant husband, in his oral submissions to this Court today, focused entirely on the proceedings in the Tribunal.  It is plain that the appellant husband does not understand that this Court can interfere only if error is established in the judgment of the Federal Magistrate. 

9                     Moreover, the submissions which the appellant husband made to this Court today indicate that he does not understand the function of judicial review, and what the Federal Magistrates Court or, indeed, this Court can do concerning findings made by the Tribunal on the merits of the appellants’ claims. 

10                  The appellant husband submitted today that the Tribunal neglected important evidence and rejected his case and that that rejection was really unfair; that he was not given a fair opportunity by the Tribunal to explain the information that was given at the hearing, including information from his wife and his daughter.  He stated that the hearing in the RRT was really unfair, and that:

I hope the court will reconsider the decision of the RRT.  I want my case to be reviewed.  I will be punished if I have to return to China.

11                  The position is that the Tribunal rejected the claims by the appellants.  In particular, the Tribunal rejected the claims of the first appellant on the basis that his claims were not believed.  It is not open to this Court to review the merits of the appellants’ claims, or whether the Tribunal’s findings were fair.  I refer to the observations  of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, particularly at 281 - 282, and 291, 292. 

12                  As to the complaints of ignoring the information provided, and, in particular, that given by the wife and daughter of the first appellant, the Federal Magistrate noted in [13] of his Honour’s reasons for judgment:

The applicant wife and the daughter gave oral evidence at the hearing [that is, the hearing before the RRT], and submitted a statutory declaration and a statement respectively after the hearing. 

13                  The Federal Magistrate concluded that the Tribunal had had regard to that evidence and material.  His Honour referred to [80] and [83] of the reasons by the Tribunal, noting that the evidence provided by the applicant:

… did not overcome [the Tribunal’s] concerns about the applicant’s credibility.  The weight to be given to evidence or particular pieces of information is for the Tribunal to assess (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 580, [197]).

14                  The Tribunal made two observations which are relevant in relation to matters which the first appellent raised this morning in this Court.  The first observation concerns his claim that he was in ill health at the time of the hearing.  Paragraph 65 of the Tribunal’s reasons refer to the prescription of Dr Steven YK Chan and the applicant’s confusion and difficulties in responding to questions put to him, which difficulties were said to be caused by his ill-treatment by the authorities in China. 

15                  The Tribunal said at [66]:

In consideration of the evidence as a whole and on the basis of the available evidence, the Tribunal is not satisfied that the applicant suffers from any condition which the Tribunal needs to take into account in assessing the claims.

16                  Secondly, the Tribunal observed that the applicant had travelled to Australia on a genuine passport that the applicant brought with him to the hearing.  There is no suggestion that the applicant had left China illegally, and the Tribunal concluded (at [78]) that on a consideration of the evidence as a whole, and for the following reasons, the applicant does not have a well-founded fear of persecution:

The Tribunal appreciates that an adverse credibility finding is a serious finding which must be made cautiously.

…

In consideration of the evidence as a whole and given the adverse credibility finding, the Tribunal is not satisfied that the applicant has been involved in any of the claimed activities. 

17                  I appreciate that the first appellant has maintained his claim that the Tribunal neglected important evidence and, in rejecting his case, engaged in “really unfair conduct”.  That complaint, while it may be genuinely entertained, was considered carefully by the Federal Magistrate and rejected.  In any event, it does not provide a basis to establish jurisdictional error on the part of the Tribunal, nor does it provide a basis on which this Court can allow each appellant’s appeal. 

18                  On a consideration of each of the grounds, which were the subject of extensive written submissions by counsel for the first respondent, there is no basis on which one can conclude that the decision of Driver FM was tainted by appellable error. 

19                  For the reasons which I have set out above, the appellants’ appeal should be dismissed. 

20                  The order of the Court is that the appeals be dismissed, and that the first and second appellant pay the costs of the first respondent of and incidental to the appeal, to be taxed if not agreed.

Associate:

Dated:         8 December 2008