FEDERAL COURT OF AUSTRALIA

SZMTM v Minister for Immigration and Citizenship [2009] FCA 181  

Federal Court of Australia Act 1976 (Cth), s 24(1A) 

Migration Act 1958 (Cth), s 424A, s 425

Federal Magistrates Court Rules 2001, r 44.12    

SZMTM v Minister for Immigration and Anor [2008] FMCA 1642 affirmed

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 followed and applied  

SZMTM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1978 of 2008

FOSTER J

27 FEBRUARY 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The Application for Leave to Appeal be dismissed.

2.                  The applicant pay the first respondent’s costs of and incidental to the Application. 

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     There is before me an Application for Leave to Appeal from a judgment of a Federal Magistrate delivered on 8 December 2008 (SZMTM v Minister for Immigration and Anor [2008] FMCA 1642) in which the Federal Magistrate dismissed with costs an application for judicial review of a decision made by the second respondent, the Refugee Review Tribunal (the Tribunal) handed down on 19 August 2008.  The Tribunal’s decision affirmed a decision of a delegate of the first respondent (the Minister) dated 14 April 2008 not to grant a protection visa to the applicant.

2                     On 4 November 2008 Driver FM ordered that the applicant’s application for judicial review be listed for a preliminary hearing under r 44.12 of the Federal Magistrates Court Rules 2001 (the FMC Rules).  That hearing took place on 8 December 2008.  On that day the learned Federal Magistrate dismissed the application pursuant to r 44.12(1)(a) of the FMC Rules.  The effect of that order was that the decision of the Tribunal was affirmed. 

3                     Rule 44.12 of the FMC Rules is in the following terms:  

44.12   Show cause hearing

(1)        At a hearing of an application for an order to show cause, the Court may:

(a)        if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

(b)        if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

(c)        without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

(2)        To avoid doubt, a dismissal under paragraph (1) (a) is interlocutory.

4                     The Federal Magistrate was not satisfied that the applicant’s application before him had raised an arguable case for the relief which she then claimed.  Accordingly, the Federal Magistrate dismissed the applicant’s application. 

5                     The order for dismissal which the Federal Magistrate made was interlocutory.  Therefore, an appeal to this Court may only be brought with the leave of this Court (see s 24(1A) of the Federal Court of Australia Act 1976 (Cth)).

6                     The discretion which the Court has in respect of such an application for leave to appeal is a wide one.  However, it must not be exercised idiosyncratically and ordinarily would be informed by the principles articulated and explained by a Full Court of this Court in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.  In that case the Court held that, in determining whether leave to appeal should be granted from certain interlocutory decisions made by a judge in a patent case:

(1)               The decision in question must be demonstrated to be attended with sufficient doubt to warrant it being reconsidered on appeal; and

(2)               The Court must be satisfied that substantial injustice would be visited upon the applicant if leave is not granted.

7                     This is the test which I propose to apply to the application before me in the present case.

8                     The applicant is a citizen of the People’s Republic of China (the PRC).  She arrived in Australia on 10 February 2008 on a subclass 456 business visa.  On 7 March 2008, the applicant lodged an application for a Protection (Class XA) Visa with the Department of Immigration and Citizenship.  A delegate of the Minister refused the application for a protection visa on 14 April 2008 and notified the applicant of that decision by letter dated, incorrectly, 14 December 2007. The reasons which accompanied that letter were dated 14 April 2008.  On 9 May 2008, the applicant applied to the Tribunal for a review of that decision.

9                     The protection claims which the applicant made originally were set out in a typed statutory declaration expressed in English.  This statutory declaration accompanied her application for a protection visa.  In that declaration, the applicant claimed that she had escaped from her husband, who was violent towards her, with the help of her friend, Ms Zhang, but that they were both later arrested for anti-revolutionary activities.

10                  In the proceedings before the Tribunal the applicant claimed to fear persecution in the PRC on the basis of her political opinions.  She also claimed to have been a victim of domestic violence whose problems had been publicised in newspaper articles by a journalist from the Fujian Daily.  She claimed that she had been accused of being a counter-revolutionary on account of these articles, and that she had been subsequently detained for one month during which time she had been tortured and interrogated. 

11                  The applicant appeared at a hearing before the Tribunal on 9 July 2008.  At that hearing, she had the assistance of an interpreter qualified to interpret as between Mandarin and English. 

12                  On 10 July 2008, the Tribunal sent a letter dated that day to Ms Priscilla Yu who was then acting as the migration agent for the applicant.  In that letter the Tribunal invited the applicant to comment on and/or respond to information which was then of concern to it and which it considered to be relevant to its consideration of the applicant’s application.  That letter was issued pursuant to s 424A of the Migration Act 1958 (Cth) (the Act).

13                  On 17 July 2008 Ms Yu collected a copy of the CDs which contained a record of the proceedings of the hearing before the Tribunal which had taken place on 9 July 2008. 

14                  On 24 July 2008, the applicant, through her authorised representative, Ms Yu, submitted a formal response to the various matters raised in the Tribunal letter dated 10 July 2008.  She did so in the form of a statutory declaration dated 24 July 2008.

15                  Subsequently, on 8 August 2008, the Tribunal affirmed the decision of the delegate to refuse to grant a protection visa to the applicant.  The Tribunal’s decision was signed on 8 August 2008 and handed down on 19 August 2008.  The decision of the Tribunal was supported by detailed reasons. 

16                  The Tribunal found that the applicant was not a credible witness.  In support of that finding, the Tribunal cited several factors.  These included a finding that the applicant’s account of the content and provenance of the newspaper articles was unconvincing; a finding that she had failed to raise before the delegate several issues which she had subsequently raised before the Tribunal (for example, her husband’s uncle’s significant role in the public security bureau); the fact that she gave inconsistent accounts of important details, such as measures to evade the PRC authorities; and her ability, in all the circumstances, to depart the PRC legally and relatively easily using a passport in her own name.

17                  For these and other reasons, the Tribunal rejected the applicant’s account of relevant events in the PRC and did not accept that she held a well-founded fear of persecution in the PRC. 

18                  Towards the end of its reasons, in a paragraph in which it summarised its essential findings concerning the information furnished to the Tribunal by the applicant, the Tribunal said:

For all of the above reasons, the applicant did not impress the Tribunal as a credible witness.  She provided inconsistent and implausible evidence, which was often bereft of any meaningful detail.  In the Tribunal’s opinion, the totality of the applicant’s oral evidence shows a propensity to tailor her evidence in a manner which achieves her own purpose. 

19                  The Tribunal simply did not accept the various assertions made by the applicant in support of her contention that she had a well-founded fear of persecution in the PRC.

20                  Before the Federal Magistrate, the applicant contended that there had been bias demonstrated against her by the Tribunal, that the Tribunal had failed to accord procedural fairness to her, and that the Tribunal had failed to address her claims. 

21                  The grounds of review relied upon by the applicant before the Federal Magistrate were numerous and, as the Federal Magistrate found, “expressed discursively”.

22                  In effect, the Federal Magistrate found that the claims made before him did not rise above challenges to the factual findings made by the Tribunal in its decision. 

23                  Having considered all of the grounds which the applicant advanced to him, the Federal Magistrate concluded that the applicant had failed to advance any arguable case of jurisdictional error on the part of the Tribunal.  His Honour also found that there was no arguable case of error apparent from his own reading of the material before him. 

24                  His Honour found that the Tribunal’s adverse credibility conclusions were open to it and that the Tribunal’s decision not to accord weight to the applicant’s documents did not establish bias or any jurisdictional error on its part.  His Honour found that the Tribunal had followed a fair procedure in dealing with the applicant’s claims and had complied with s 424A and s 425 of the Act.  His Honour described the Tribunal’s consideration of the applicant’s claims as “particularly cautious and comprehensive”.

25                  His Honour accepted and adopted the submissions made on behalf of the Minister that the grounds raised by the applicant failed to disclose jurisdictional error on the part of the Tribunal.  On the basis that the applicant had failed to advance any arguable case of jurisdictional error on the part of the Tribunal, his Honour ordered that the applicant’s application be dismissed pursuant to r 44.12(1)(a) of the FMC Rules.

26                  In this Court, the applicant has filed an Application for Leave to Appeal from the Federal Magistrate’s decision.  That Application was filed on 19 December 2008 and was supported by an affidavit sworn on the same day.  In that affidavit, the applicant alleges that the Federal Magistrate erred in failing to find that the Tribunal had been biased against her and also erred in failing to consider the applicant’s evidence appropriately or at all.  The applicant also reiterated at length in that affidavit her factual claims for a protection visa which she had raised before the Tribunal and also with the Department. 

27                  The applicant attached a draft Notice of Appeal to her affidavit.  That draft Notice of Appeal contained the following grounds:

1.         The Federal Magistrates [sic] erred in law.

2.         The Federal Magistrates [sic] was wrong in finding that the Refugee Review Tribunal (the Tribunal) acted properly in its findings.

Particulars:

1.         While deciding my application, the Tribunal failed to assess my claims against actual country background in China; or the Tribunal failed to consider my claims properly; or the Tribunal’s finding has included a reasonable apprehension of bias; or the Tribunal made its finding unreasonably, illogically and based on nothing but only its unwarranted assumption.

2.         The Tribunal failed to consider my important documentary evidence.

3.         In conclusion, I never ever believe that my application has been considered by the Tribunal fairly and properly.  The Tribunal’s decision must err in law.

28                  In considering and determining the Application presently before me, it is to the grounds of appeal notified in that draft Notice of Appeal to which I must have regard. 

29                  The applicant has appeared before me today in person.  She has put her case with the assistance of an interpreter.  No written submissions were filed in support of the applicant’s Application, although a Registrar of this Court had directed that such submissions should be filed by no later than Thursday of last week (19 February 2009).  Accordingly, I must do my best with the application and affidavit which has been filed in support of the Application as explained by the applicant in the oral submissions which she has made today.

30                  The applicant submitted to me that she had three points in addition to the matters she had raised in her Application and affidavit in support.  In the end, she addressed only two points. 

31                  As I understood the first of these points, the applicant submitted that the Tribunal had given weight or too much weight to its view that there were many websites and NGOs in the PRC that are devoted to raising awareness about domestic violence and assisting victims without facing reprisal.  The applicant submitted that those websites are controlled by the government in the PRC and represent a controlled environment in which government views are expressed.  She said that, for those reasons, the existence of such websites should not have been given any weight by the Tribunal.  The applicant put to me that it had been unfair on the part of the Tribunal to pay regard to such material.

32                  This is a matter which cannot sensibly support a submission that, in using this material in the way that it did, the Tribunal was guilty of jurisdictional error and that the learned Federal Magistrate was also guilty of jurisdictional error by failing to find that the Tribunal had been guilty of jurisdictional error.  The finding referred to and relied upon by the applicant was nothing more than a statement which was designed to address and to answer, to some extent, the proposition which she had advanced to the effect that her writings or the writings about her had produced an angry response from the relevant authorities.  As I understood the finding of the Tribunal, it was simply to the effect that the type of material which was said to have been the subject of these writings was material which was under discussion in the PRC at the relevant time without leading to retribution or persecution by the authorities.  In any event, this is purely a factual matter based upon material to which the Tribunal was perfectly entitled to have regard and the learned Federal Magistrate was not guilty of jurisdictional error in not finding that the Tribunal had committed jurisdictional error when it took account of this type of material in the circumstances and for the reasons that it did.

33                  The next matter alleged by the applicant was that the Tribunal had been biased against her and that the learned Federal Magistrate had failed properly to assess her claim.  She submitted that the Federal Magistrate had thus committed jurisdictional error.  The matter particularly relied upon in support of this submission was that the Tribunal unfairly and unreasonably drew negative inferences about the applicant’s credibility because the Tribunal took the view that she had given inconsistent stories to the delegate, on the one hand, and to the Tribunal, on the other hand, concerning the circumstances in which she had obtained a passport and the reasons why she had obtained that passport.  The applicant also sought to re-agitate this matter of fact in support of her present application.

34                  I have considered what occurred in relation to this aspect.  The letter of 10 July 2008 which the Tribunal sent to the applicant directly and clearly raised the Tribunal’s concerns in respect of these allegedly inconsistent versions of events.  The migration agent representing the applicant obtained the CDs of the Tribunal hearing shortly thereafter.  The applicant herself addressed the matter directly in her statutory declaration of 24 July 2008.  It seems to me that the applicant was given every opportunity to come to grips with the thinking then in play in the mind of the Tribunal in respect of these inconsistencies.  She responded fully in the fashion that she considered appropriate at the time.  Neither she nor the migration agent representing her requested access to the tape of the interview between the applicant and the delegate although it was clearly open to her to do so.

35                  It seems to me that it is not now open to the applicant to raise as a ground of complaint in this Court the fact that the Tribunal must have misunderstood the terms of the interview which took place between her and the delegate and thus incorrectly used its understanding of that interview to make findings against her.  The Tribunal was entitled to listen to the tape of that interview in light of the applicant’s asserted explanations for what appeared to be inconsistencies and it was always open to the applicant to do the same.  It seems to me that in dealing with the inconsistencies identified by the Tribunal and notified to the applicant, the Tribunal did not manifest bias against the applicant and that the learned Federal Magistrate did not commit jurisdictional error when he declined to regard the claims of bias made in front of him as having been made out.

36                  The third point raised by the applicant is connected to the second and did not seem to me to be a separate point. 

37                  In substance, what the applicant seeks to do in this Court by the present application is to open the way for her to re-agitate a number of matters of fact which were the subject of findings before the Tribunal with which she disagrees.  Unless she can demonstrate jurisdictional error on the part of the learned Federal Magistrate in dealing with the matter when it came before him, she cannot successfully agitate in this Court complaints which she has about the Tribunal’s approach and decision.

38                  I have to say that the learned Federal Magistrate examined the matter carefully and was satisfied that the applicant failed to demonstrate any arguable case for the relief which she was then claiming before him.  

39                  Further, it is not open to the applicant to come to every level of judicial consideration of her case hoping to re-agitate matters of fact which have been decided against her by the relevant decision makers.  In this Court, she must demonstrate jurisdictional error and she cannot do so.

40                  In these circumstances, it seems to me that there is no point granting leave to the applicant to appeal because to do so would be futile.  She cannot demonstrate jurisdictional error on the part of the Federal Magistrate.  Nor can she demonstrate that substantial injustice will be visited upon her if leave to appeal is not granted.  For these reasons, I propose to dismiss the applicant’s Application for Leave to Appeal and I now do so.  I order that the applicant pay the first respondent’s costs of and incidental to the Application. 

Associate:

Dated:         6 March 2009