FEDERAL COURT OF AUSTRALIA

SZMWO v Minister for Immigration and Citizenship [2009] FCA 814

MIGRATION – appeal from Federal Magistrate – no jurisdictional error – appeal dismissed

Convention Relating to the Status of Refugees 1951, amended by the Protocol Relating to the Status of Refugees 1967, A 1A(2)

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

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611

Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) CLR 259

NAAG of 2002 v Minister for Immigration Multicultural and Indigenous Affairs (2002) ALR 207

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212

Re Refugee Review Tribunal; Ex parte H (2001) ALJR 982

SBBF v Minister for Immigration and Multicultural and Indigenous Affairs[2002] FCAFC 358

SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs (2006) 228 CLR 152

SZLGP v Minister for Immigration & Citizenship [2008] FCA 1198

SZMDS v Minister for Immigration and Citizenship [2009] FCA 210 

SZMWO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 382 of 2009

BARKER J

3 AUGUST 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The applicant to pay the first respondent's costs to be taxed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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REASONS FOR JUDGMENT

1                     This is an appeal against a judgment of a Federal Magistrate of 15 April 2009 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) of 25 September 2008.  The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship who formed the view that the appellant is not a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees 1951, amended by the Protocol Relating to the Status of Refugees 1967 (Convention) and accordingly refused to grant a protection visa on 2 June 2008.

CLAIMS MADE TO REFUGEE STATUS

2                     Article 1A(2) of the Convention relevantly defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it

3                     The appellant is a citizen of China who arrived in Australia on 3 February 2008.  On 17 March 2008 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 2 June 2008.  On 4 July 2008, the appellant applied to the Tribunal for a review of that decision.

4                     Before the Tribunal, the appellant claimed that he arranged a protest against the actions of a construction company that had previously employed him.  In his second year of employment the company had paid him no wages, only a very small living away from home allowance.  The appellant asked the company to pay him what they owed him so that he could pay for his father's medical treatment, but this was refused.  The appellant also requested to return home to see his father, but this was declined as well.  In July 2007, as his father's condition deteriorated, the appellant was again refused assistance by the construction company so he left the site and went back home.  His father died in August.  He returned to the construction company in September 2007, but was told that he had been dismissed and all his outstanding benefits were confiscated.

5                     The appellant claimed that by organising the protest he thereby came to the attention of the Public Security Bureau (PSB) who arrested and detained him for about a month on the grounds that he was causing problems of a political nature.  He claimed that he was tortured in detention and forced to admit to anti-government feelings.  After the month in custody he was returned to the construction site where he was made to work in very poor conditions for no pay.

6                     In December 2007, he escaped with the help of people around the site and went to another province where he said he had a friend who was in the travel business.  He stated he had saved the life of this friend and that was why the friend agreed to help him.  The friend obtained a false passport for the appellant, which he gave to him on the day that he was due to leave, and the appellant arrived in Australia on this false passport.

refugee review tribunal

7                     The Tribunal accepted that the appellant had travelled to Australia on a false passport but did not accept that he had engaged in employment as a construction worker or that the events which he told of had occurred. It did not consider that the appellant was a witness of truth.

8                     The Tribunal indicated that it did not find it plausible that the appellant did not know that his friend was going to get him a false passport.  It noted that he had given what were described as "confused and at times contradictory evidence" about his work and his wife's work.  The Tribunal found it difficult to understand how, on the appellant's evidence, his family had managed to survive on the very small amount of money that he claimed he had received working for the construction company and felt the part of his story about his escape from the construction site and the method of leaving Australia were contrived.

9                     The Tribunal concluded that there was no plausible evidence before it that the appellant has suffered or will suffer persecution because of his political opinion, his imputed political opinion, because he is a member of a particular social group or for any Convention reason, from Chinese police/authorities or anyone else in the country, either now or in the reasonably foreseeable future, if he returned to China.

10                  The Tribunal therefore affirmed the decision under review.

FEDERAL MAGISTRATES COURT

11                  On 23 October 2008 the appellant filed an application for judicial review in the Federal Magistrates Court.  That application was more in the form of an outline of submissions which appeared to suggest the following five grounds of review:

(a)           the Tribunal failed to "deal with an integer" of the appellant's claims being that his friend organised his trip to Australia (paras 4 to 7 of the application).  The Federal Magistrate held that the Tribunal had addressed this issue and merely came to conclusions adverse to the appellant (at [11] to [13] at AB 18 to 19);

(b)          the Tribunal's decision was so unreasonable that no reasonable decision‑maker could have made it (paras 8 to 11 of the application).  The Federal Magistrate considered that this ground of review was in substance seeking impermissible merits review (at [13] to [11] at AB 19);

(c)           the Tribunal failed to give reasons and make a genuine attempt to consider the appellant's claims fairly in relation to his escape from his work and China (paras 12 and 13 of the application).  The Federal Magistrate did not accept here was any evidence that the Tribunal had not made a genuine attempt to consider the appellant's claims (at [15] at AB 19);

(d)          the Tribunal failed to consider fairly the appellant's claims:

(i)             when it raised two questions about the appellant's contact with his family in China and the harassment he claimed they are experiencing (para 14 of the application); and

(ii)           by finding that the appellant changed his evidence at the hearing (para 15 of the application);

the Federal Magistrate held that it was open to the Tribunal to reach the conclusions it did and even if the Tribunal was wrong in those conclusion that was an error of fact within jurisdiction (at [16] to [17] at AB 19 to 20);

(e)           the Tribunal breached s 424AA or 424A of the Migration Act 1958 (Cth) (Act) in relation to unspecified information (para 16 of the application).  The Federal Magistrate held that there was no information to which these sections would relevantly operate in the appellant's case and, even if the sections did apply and had been breached, he would exercise his discretion not to grant relief (at [18] to [19] at AB 20 to 21).

12                  Having found no jurisdictional error in the decision of the Tribunal, his Honour dismissed the application.

appeal to this court

13                  On 5 May 2009, the appellant filed a Notice of Appeal in this Court.  There are two main grounds of appeal as follows:

Ground 1: His Honour erred in failing to find that: the Tribunal failed to act according to substantial justice and the merits of the case, committed jurisdictional error in failing to find that the Tribunal's reasoning and fact finding were irrational/illogical/unreasonable; that the Tribunal had a reasonable apprehension of bias; and the Tribunal's findings were based on unwarranted assumptions. 

(a)           the Tribunal erred by making findings that were irrational, illogical and unreasonable:

(b)          the Tribunal failed to act according to the substantial justice and merits of his case;

(c)           the Tribunal was biased;

(d)          there was no evidence the Tribunal acted "indecently(sic) and fairly and reasonably and logically" in considering his background;

Ground 2:     The Tribunal failed to comply with s 425 of the Act.

14                  The appellant has not filed any written submissions.  The first four grounds in the Notice of Appeal, which are accompanied by particulars, were rejected by the Federal Magistrate.  The final allegation that the Tribunal failed to comply with s 425 of the Act is entirely new.  The particulars of that allegation refer to the Tribunal's finding that the appellant's explanation of his escape from his worksite and the methods by which he arranged to leave China were not plausible (AB 150 [46]).

15                  The appellant failed to appear at the hearing despite being given notice of the hearing.  In the circumstances, the Court decided to continue with the hearing and heard from counsel for the first respondent on each of the grounds (and particulars) of the appeal.

Ground 1: His Honour erred in failing to find that the Tribunal failed to act according to substantial justice and the merits of the case, committed jurisdictional error in failing to find that the Tribunal's reasoning and fact finding were irrational/illogical/unreasonable; that the Tribunal had a reasonable apprehension of bias; and the Tribunal's findings were based on unwarranted assumptions.  

16                  The appellant has particularised these claims with reference to the following matters, which he also raised at the hearing before the Federal Magistrate. These were the allegations that:

17                  In response to the first allegation, the Federal Magistrate found that these were matters that were raised with the Tribunal.  A careful reading of the Tribunal's decision indicated that it was not the use of the false passport that brought the Tribunal to its conclusion that the appellant did not have any convention based grounds for claiming that he was being persecuted in China.  Rather, the Tribunal came to that conclusion because it was unable to be satisfied that the appellant was telling the truth (at [20]).

18                  In response to the second allegation, the Federal Magistrate noted that this was discussed at para [45] of the Tribunal’s decision.  In this regard, the Tribunal's point was not that there was no opportunity to farm after 2000, but that the appellant had given contradictory and confused evidence concerning this aspect of the matter.

19                  I do not detect any error in the way the Federal Magistrate dealt with these issues.

20                  The Tribunal’s findings were open to it on the evidence before it and for the reasons it gave. The findings of the Tribunal were not 'irrational' or 'illogical' in the sense of SZLGP v Minister for Immigration & Citizenship [2008] FCA 1198 or SZMDS v Minister for Immigration and Citizenship [2009] FCA 210, nor were they unreasonable in the sense of Wednesbury unreasonableness (see, for example, Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [30]).  

21                  Further, it should be noted that if the appellant is claiming that the failure to act according "to substantial justice and the merits of the case" amounted to a breach of s 420 of the Act, such a failure would not in any event constitute a jurisdictional error: Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611.

22                  Nor is there any evidence of actual or apprehended bias in the decision of the Tribunal. Allegations of bias and lack of good faith must be distinctly made and clearly proved(Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507), and rarely will bias on the part of the Tribunal be apparent from the written reasons only (SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358).  There is no 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 may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H (2001) ALJR 982 at 27-32).  Nor does a fair reading of the Tribunal’s decision disclose a lack of an honest or a genuine attempt by the Tribunal to make a decision, including in the conduct of its review (NAAG of 2002 v Minister for Immigration Multicultural and Indigenous Affairs (2002) ALR 207).

23                  As noted by the Federal Magistrate (at [15]), the fact that the Tribunal came to conclusions which were unsatisfactory to the appellant, is not itself a ground of judicial review.  Ground 1 in effect invites the Court to undertake merits review of the Tribunal’s decision, which is not its function: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) CLR 259.

Ground 2: The Tribunal failed to comply with its obligations under s 425 of the Act

24                  The appellant has particularised this ground with the claim that there is no evidence that the Tribunal gave him genuine opportunity to present arguments in relation to the Tribunal's finding at para [46] of its decision.  In sum, the Tribunal found in this respect that the evidence about his escape from supervised work was contrived, and the details about his travel with a friend after the escape were not plausible.

25                  Ultimately, the Tribunal reached its decision in the present matter because it found that the appellant was not a credible witness.  It found that the oral evidence given by the appellant was inconsistent, and that there was no plausible evidence that the appellant had suffered or will suffer persecution because of his political opinion, or his imputed political opinion.

26                  It is not necessary for the Tribunal to put to an applicant, in so many words, that the applicant is lying or that the applicant may not be accepted as a witness of truth or that the applicant may be thought to be embellishing the account that is given of certain events.  Procedural fairness does not require the Tribunal to give an applicant "a running commentary" upon what it thinks about the evidence that is given.  To adopt such a course could run a serious risk of conveying an impression of prejudgment (SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48]). Further, in this case, it is quite clear that the appellant was 'put on notice' (in the SZBEL sense) that his credibility was in issue by reason of the delegate’s decision (see AB 113.2).

27                  For the above reasons, it is submitted that there is no substance to the appellant's contention that the Tribunal failed to comply with s 425 of the Act and, by implication the Federal Magistrate erred in not so finding.

any other error?

28                  No other error of law can be detected in the decision of the Federal Magistrate.  Nor can any other error be detected in the decision of the Tribunal.  The Tribunal identified with particularity all of the appellant's claims and supporting material before it; explored his claims with him at a hearing; raised with the him the inconsistencies in his evidence and doubts over his claims; made findings based on the evidence and material before it; and, applied the correct law to its findings in reaching its conclusion that it was not satisfied that the appellant was a person to whom Australia has protection obligations under the Convention.

conclusion and order

29                  In my opinion, the approach of the Federal Magistrate and his Honour's conclusion do not reveal any error of law. 

30                  The appeal should be dismissed with costs.

Associate:

Dated:         3 August 2009