FEDERAL COURT OF AUSTRALIA

SZMNK v Minister for Immigration and Citizenship [2009] FCA 202

MIGRATION – impermissible merits review – Tribunal’s adverse findings as to credit

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

Migration Act 1958 (Cth)s 476(1)

Jones v Southall & Bourke Pty Ltd [2004] FCA 539, cited

Low v Commonwealth of Australia [2001] FCA 702, cited

MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 497, cited

NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975, cited

SZMNK v Minister for Immigration and Citizenship [2008] FMCA 1669, affirmed

WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106, 204 ALR 624, cited

SZMNK v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

NSD 31 of 2009

FLICK J

5 March 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The Notice of Appeal as filed on 13 January 2009 is dismissed.

2.                  The Appellant is to pay the costs of the First Respondent fixed in the sum of $3,200.

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.

2                     He arrived in Australia on 9 December 2007 and applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 8 January 2008. His application stated his religion to be “Christian” and a statement annexed to his application concluded (without alteration) as follows:

In China there is no real religious freedom, and the police can catch those Christians at any time once been found. I am scared. That’s why I left China. I hope Australian Government could protect me.

That application was rejected by a delegate of the Minister on 4 February 2008.

3                     An application was then lodged on 28 February 2008 seeking review of the delegate’s decision by the Refugee Review Tribunal. By way of a decision signed on 28 May 2008 the Tribunal affirmed the delegate’s decision. In part, the Tribunal’s reasons state:

[59] … the Tribunal finds that the applicant has no knowledge, conviction, understanding, or awareness of what could reasonably be regarded as a person holding a religious faith, let alone the Christian faith, even in a home church in China. ….

4                     An Application was then filed with the Federal Magistrates Court on 15 July 2008. The grounds upon which that application was advanced were stated to be as follows (again without alteration):

1.          Jurisdictional error has bee made. RRT did not use favorable cases to my application.

2.          Procedural Fairness has been denied. RRT failed to address me potential sur place claim that I would be exposed to a real risk of persecution in the future as I am devoted Christian.

That Court dismissed the application by way of a decision published on 16 December 2008: SZMNK v Minister for Immigration and Citizenship [2008] FMCA 1669. The Federal Magistrate’s decision noted that each of the first two grounds relied upon was but a “bare assertion” and that no particulars were provided or submissions advanced in support of the assertions made. Nor did the then Applicant avail himself of an opportunity extended to him by the Federal Magistrate to file an Amended Application and further evidence. Notwithstanding the deficiencies in the Application as filed, the Federal Magistrate proceeded to address each of the grounds and satisfied herself that each of the grounds should be rejected. The Federal Magistrate further noted “[t]hese grounds have been seen regularly in this Court before[,] even to the spelling mistake in ground 1 in relation to ‘bee’”.

5                     A Notice of Appeal was then filed with this Court on 13 January 2009. The purported Grounds of Appeal are there specified (without alteration) as follows:

1. Refugee Review Tribunal did not make fair decision for my application

2. I gave all details about my claims but the Judge refused my application on my hearing date. It is not fair. I am Christian. I will be persecuted if I return to China.

3. I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court.

An Affidavit sworn by the now Appellant states (without alteration):

My application for a protection visa was refused by DIAC and RRT and I found RRT decision is not fair. I lodged my application to be reviewed at Federal Magistrates Court. The judge did not consider all information provided at my Hearing. I have no chance to provide more evidence and my case was dismissed.

6                     The now Appellant appeared before the Court this morning unrepresented, although he did have the assistance of an interpreter. He has explained to the Court that the purported Grounds of Appeal were drafted by a “friend” and that he was unable to further expand on what was intended to be conveyed by those Grounds. He has further explained that the further evidence that he wished to adduce before the learned Federal Magistrate was evidence that:

·                    he had been detained by the police in China for a period of two days; and

·                    he had been fined RMB 5,000.

This evidence formed part of his statement as set forth in his original application received by the Department on 8 January 2008.  The Appellant also stated that the contents of his Affidavit had not been translated to him prior to execution and that he was simply asked by a “friend” to sign the Affidavit. That was what he did, apparently not knowing what he was signing.

7                     The Appeal is to be dismissed.

8                     The first purported Ground of Appeal does not address any error said to have been committed by the Federal Magistrate. This Court has no jurisdiction to entertain an appeal from a decision of the Tribunal. The relevant jurisdiction is its appellate jurisdiction in respect to a decision of a Federal Magistrate. Moreover, the ground is misconceived. Neither the Federal Magistrates Court nor this Court on appeal can review a decision of the Tribunal simply upon the basis that it is said to be not “fair”. The relevant jurisdiction of the Federal Magistrates Court is that conferred by s 476(1) of the Migration Act 1958 (Cth) which provides as follows:

Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

The jurisdiction under s 75(v) does not extend to a consideration of the factual merits of a decision and a consideration as to whether it is “fair” or “unfair.” The relevant appellate jurisdiction of this Court is that conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) and that jurisdiction does not extend beyond that conferred upon the Federal Magistrate. Relying upon an earlier decision of Kenny J, Her Honour Justice Crennan in Jones v Southall & Bourke Pty Ltd [2004] FCA 539 summarised the nature of such an appeal to this Court as follows:

[2] An appeal from a judgment of the Federal Magistrates Court under s 24(1)(d) of the FCA Act is neither a hearing de novo nor an appeal in the strict sense, but is an appeal by way of re-hearing.

As stated by Kenny J in Farrington v Deputy Commissioner of Taxation (2002) 50 ATR 429 at [4]:

On an appeal by way of re-hearing, the powers of an appellate court are exercisable only if the appellant can demonstrate that, having regard to the evidence before the appellate court, the judgment under appeal is a consequence of some legal, factual, or discretionary error: see Allesch v Maunz (2000) 173 ALR 648 at 653–54 per Gaudron, McHugh, Gummow and Hayne JJ; Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 178 ALR 421, at 439 per Gleeson CJ and Gummow J; and Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 174 ALR 585 at 590 per Gleeson CJ, Gaudron and Hayne JJ.

See also: Low v Commonwealth of Australia [2001] FCA 702 at [3] per Marshall J; WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106 at [18], 204 ALR 624 at 628 to 629 per French J (as His Honour then was); NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975 at [31] per Graham J; MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 497 at [29] per Young J. The appellate jurisdiction of this Court has been conferred for the purpose of correction of any error in the decision of a Federal Magistrate, not to correct error on the part of the Tribunal.

9                     The second purported Ground of Appeal has been construed as a contention that the Federal Magistrate was provided with all of the materials relevant to the now Appellant’s claim and that her dismissal of the Application was in such circumstances not “fair.” Again, the ground is misconceived. The task of the Federal Magistrate was not to conduct a merits review of the decision of the Tribunal and to itself consider whether it was “fair” to allow the now Appellant to remain in Australia.

10                  The final Ground of Appeal is also without substance. The Magistrate’s reasons expose a careful account of the review undertaken by the Tribunal and an attempt to give content to otherwise “bare assertions”. Whatever may be the extent of the responsibilities entrusted to a trial judge to ensure that a hearing is fair, especially where there is an unrepresented party, there is no basis upon which any contention should be entertained that the present Appellant has not been treated fairly and in accordance with law. The reasons of the Federal Magistrate, indeed, go beyond the grounds of the Application being advanced by the unrepresented Applicant. Consideration was thus given to a possible argument not raised by the then Applicant, namely whether reliance upon 2003 country information exposed error in circumstances where the hearing was conducted in 2008. No jurisdictional error was discerned. Counsel for the Minister has again addressed this issue in this Court and correctly submitted that the decision of the Federal Magistrate was correct.  

11                  The statement in the now Appellant’s Affidavit that he had “no chance to provide more evidence” is an assertion without substance.

12                  Contrary to that which is set forth in his Affidavit, the Federal Magistrate’s reasons expressly state that “the Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon together with any evidence by way of affidavit”: [2008] FMCA 1669 at [26]. No further evidence was filed.

13                  Moreover, and, in any event, there was no need to file “more evidence”. The “more evidence” that the now Appellant wished to adduce was already in evidence. The statement annexed to the original January 2008 application for a protection visa relevantly stated:

They arrested seven of us into Fuqing police station. [XXX] signed a piece of paper, showing that he would no longer gather with us. [XXX] did this to protect us from police’s persecution. As a result, we spent 2 days in the police station. We were released after paid RMB5,000.

This was evidence that was before the Minister’s delegate and before the Tribunal. The Tribunal asked questions of the now Appellant as to this statement and rejected his evidence, finding in part as follows:

[62] Further, and given all the above and its earlier findings, it follows that the Tribunal does not accept the applicant’s claim that in October 2006, the local police broke into [XXX’s] home during a religious gathering and took them to a police station; their Bible and religious documents were confiscated as evidence; seven people were arrested and [XXX] signed an undertaking that he would no longer gather with them in order to protect them from persecution; and, as a result, they were released two days later after paying RMB 5,000. It also follows that the Tribunal does not accept that he was fined RMB 5,000 Yuan as he claims, as otherwise he would not have been allowed to legally depart China using a passport issued to him in his own name and with all his personal details and photographs in it.

It was also evidence expressly referred to by the Federal Magistrate: [2008] FMCA 1669 at [14].

14                  The assertion that the now Appellant was denied an opportunity to advance further evidence before the Federal Magistrate, accordingly, exposes no appellable error.

15                  None of the purported Grounds of Appeal, it should further be noted, comply with Order 52 r 13(2)(b) of the Federal Court Rules.

16                  It should finally be noted, and as found by the Federal Magistrate:

[45] At the heart of the Tribunal affirming the decision under review was its adverse findings about the Applicant’s credibility. …

One such finding emerged when the Tribunal was addressing the now Appellant’s claims as to his Christian beliefs and its conclusions expressed as follows:

[59] … It follows the Tribunal is also satisfied that the applicant does not have a well-founded fear of serious harm amounting to persecution for a Convention reason on this basis, and the Tribunal also does not accept this claim. It also follows that the Tribunal finds that this goes to the matter of credibility, and finds he is not a credible witness.

These and other like findings were open to be made by the Tribunal. Such findings make it difficult for an applicant to achieve success in the Federal Magistrates Court. In the present proceeding, those findings proved insurmountable.

17                  The Respondent Minister has sought an Order for costs fixed in the gross sum of $3,200 pursuant to Order 62 r 4(2)(c) of the Federal Court Rules. An Affidavit supports the appropriateness of that sum and such an Order should be made.

ORDERS

18                  The Orders of the Court are:

1.                  The Notice of Appeal as filed on 13 January 2009 is dismissed.

2.                  The Appellant is to pay the costs of the First Respondent fixed in the sum of $3,200.

Associate:

Dated:         10 March 2009