FEDERAL COURT OF AUSTRALIA

SZNCW v Minister for Immigration and Citizenship [2009] FCA 818

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, Art 1A(2)

Migration Act 1958 (Cth) s 424A, s 424A(1)

Abebe v Commonwealth (1999) 197 CLR 510

Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230

Johnson v Johnson (2000) 201 CLR 488

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs  (1994) 124 ALR 265

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

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425

SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609

SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68

SZJGV v Minister for Immigration & Citizenship (2008) 247 ALR 451

SZNCW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 388 of 2009

BARKER J

4 AUGUST 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant 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.
            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 24 April 2009 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) of 9 December 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 23 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 18 March 2008.  On 2 April 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 23 June 2008.  On 23 July 2008, the appellant applied to the Tribunal for a review of that decision.

4                     The appellant claimed to fear persecution in China as a Christian who practised in an underground church.  He came to Australia as an overseas student on 29 August 2004 but returned to China on 9 July 2007, due to the death of his grandfather.  While he was in China he was notified that his Australian student visa had been cancelled.  He claimed that this caused some pressure in his home town as the locals thought he had been sent back by the Australia government.  He stated that he moved to another province where he worked as a construction labourer.  Here, he became aware of the plight of AIDS sufferers through a co‑worker and enlisted the help of volunteers from Fujian to collect donations for AIDS victims and to establish a bible study group.  On 24 February 2008, the appellant and his volunteers were surrounded by the Police and accused of holding an illegal religious gathering.  Five of the volunteers were arrested as well as about 10 locals; however, he was able to flee to another province where he hid for one month.  He claimed that the police went to his home village three times to try to arrest him, and that he is wanted by the Police for spreading religious propaganda materials and being the founder and key member of an illegal religious organisation.

refugee review tribunal

5                     In detailed reasons for decision, the Tribunal did not accept that the appellant was a witness of truth.  In making this finding the Tribunal noted a number of significant inconsistencies in his evidence, including the number of volunteers that assisted him and the number of people that were arrested by the Police.  The Tribunal also found that his travel between Hong Kong and another province prior to leaving China for Australia was inconsistent with his claimed fear of harm.  The Tribunal further noted that the appellant's evidence that there were no churches in Henan was inconsistent with independent country information before it.  The Tribunal was satisfied that the appellant was prepared to fabricate his material claims to invoke refugee protection obligations in Australia.  Based on its adverse credibility finding, the Tribunal rejected all of the appellant's material claims, concluding that he did not have a well-founded fear of persecution.

6                     The hearing was conducted on 4 September 2007.  On 3 October 2007, before the decision was made, the Tribunal gave particulars of information pursuant to s 424A of the Act.

7                     The letter outlined particulars of information that were inconsistent with the appellant's claims to the Tribunal.  He included particulars of inconsistent evidence he provided to the Department, information (namely dates) from his various travel documents and independent country information that was at odds with his claims: AB 92-97, AB 127-130.  On 16 October 2008, the appellant responded to that letter by providing a statutory declaration: AB 98-100, AB 130-132, [85] – [93].

8                     The Tribunal affirmed the delegate's decision on 8 December 2008 and made a number of findings, including material adverse credibility findings that it:

·                    Was not satisfied on the evidence that the appellant's use of a false passport meant that he did so because this was the only way for him to leave China: AB 132, [110].

·                    Accepted that the appellant was a citizen of China and his name was that of the appellant: AB 134, [111].

·                    Considered the appellant's complaint about the standard of interpretation used at his Departmental interview, and also at the Tribunal hearing (AB 135, [114]), but was not satisfied that it was inadequate or that his evidence was not properly and accurately interpreted: AB 134 – 135, [112] – [116].

·                    Did not accept that the statutory declaration provided by the appellant's agent to the Department was not an accurate translation: AB 136, [117].

·                    Rejected the appellant's claim that he was a member of an underground Christian church in China and found he was 'not a witness of truth': AB 136, [118] – [119].

·                    Found that none of the appellant's materials were true and that he was prepared to "fabricate his material claims to invoke refugee protection obligations in Australia", he was "not a witness of truth" and although he had some knowledge of Christian beliefs he was not a devout Christian: AB 139 – 140, [136 ]– [141].

·                    Considered the appellant's claim to have attended church in Australia since 2004 and a letter from the Reverend in support of that claim.  The Tribunal noted the letter did not specify how long the appellant had been attending church and rejected the appellant's claim that he had been attending this church since 2004.  The Tribunal accepted that the appellant was currently attending church but, given its findings about his credibility, found he had engaged in this conduct for the purpose of strengthening his refugee claims.  As such, the Tribunal disregarded the conduct in accordance with s 91R of the Act (see SZJGV v Minister for Immigration & Citizenship (2008) 247 ALR 451 at [22]: AB 140, [142].

·                    Did not accept on the basis of its strong adverse credibility findings that the appellant was owed protection obligations by reason of his political opinion and rejected his claims to have assisted AIDS victims in China and to have demonstrated against the People's Republic of China government in Australia in 2005: AB 141, [144] – [145].

9                     The specific inconsistencies and deficiencies identified by the Tribunal in the appellant's evidence to support its adverse credibility finding included the following:

·                    Significant inconsistencies concerning the number of volunteers with whom he travelled, how many were arrested during the police incident (AB 137, [120] – [122], and the number of the applicant's brothers suffering from AIDS: AB 139, [134].

·                    The appellant's explanations for his travel prior to leaving China was 'not credible' and contained an inconsistency.  Also, the fact that he did not depart China on his own passport when he had a valid visa for another country was 'inconsistent' with his claimed fear of harm in China: AB 137, [123] – [124].

·                    Accepted that the appellant had given evidence at his Departmental interview and at his Tribunal hearing that there were no churches in the city in question but did not accept his subsequent attempt to clarify this evidence.  It found his evidence was neither credible nor consistent with independent information: AB 137 – 138, [125] – [130].

·                    Found the appellant had given an untrue answer in his protection visa application when he stated he had trouble obtaining travel documents in China as he already held a passport in his own name and had travelled to Australia previously on that passport: AB 138, [131].

·                    Did not accept the appellant's claimed nervousness as an explanation for the inconsistencies in his evidence: AB 138, [132].

FEDERAL MAGISTRATES COURT

10                  Before the Federal Magistrate the appellant claimed that the Tribunal fell into error as:

(1)     The Tribunal's finding has included a reasonable apprehension of bias.

(2)     The Tribunal failed to comply with its obligations under s 424A(1) of the Act.

(3)     The Tribunal failed to consider my claims properly and fairly.

11                  Having found no jurisdictional error in the decision of the Tribunal, for the reasons set out below, His Honour dismissed the application.

appeal to this court

12                  On 7 May 2009, the appellant filed in this Court a notice of appeal from the decision of the Federal Magistrate.  The appellant claims that:

….His Honour was wrong in finding that the Refugee Review Tribunal ('the Tribunal') acted properly in its findings.

Particulars

1. The Tribunal’s finding has included a reasonable apprehension of bias.

2. The Tribunal failed to comply with its obligations under s 424A(1) of the Act.

3. The Tribunal failed to consider my claims properly and fairly.

13                  These grounds therefore repeat precisely the grounds relied on before the Federal Magistrate.  It is relevant then to examine His Honour's reasoning in discussing each ground on this appeal.

            REASONABLE APPREHENSION OF BIAS ISSUE

14                  Before the Federal Magistrate, the appellant particularised this ground as follows:

But, the Tribunal failed to take any genuine attempt to consider my claims properly and fairly; instead, it made a finding, which has included a reasonable apprehension of bias, as follows:

In light of the applicant's Student visa as cancelled on 28 July 2007, the Tribunal finds it unlikely that the applicant would have been able to obtain a visa in his own name to re-enter Australia.

The Tribunal then inferred, based on nothing but its assumption, that I had to use a passport in other's name to come to Australia during current trip was because that '... it is unlikely that the applicant would have been able to obtain a visa in his own name to re-enter Australia ...'

15                  The Federal Magistrate found that this allegation was misconceived.  His Honour noted that the relevant passage from the Tribunal's decision states:

In light of the evidence that the applicant's Student visa was cancelled on 28 July 2007 the Tribunal finds it is unlikely that the applicant would have been able to obtain a visa in his own name to re-enter Australia.  The Tribunal reaches no conclusion that it was for such a reason that the applicant obtained and used a fraudulent passport.  However, the Tribunal is also not satisfied on the evidence that the fact that the applicant used a fraudulent passport means that it should accept at face value his claim that he did so because this was the only way that he could leave China. (para.110)

16                  His Honour stated (at [18]) that the above reasoning of the Tribunal demonstrated that, in fact, the matters relied upon by the appellant formed no part of the basis for the Tribunal's decision except to the extent that it observed that the mere fact that the appellant had used a fraudulent passport did not necessarily support his claim.

17                  More generally, His Honour found (at [19]) that the Tribunal's decision record did not disclose material from which it could be concluded that a fair-minded lay observer properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias might reasonably apprehend that the Tribunal might not have brought an impartial and unprejudiced mind to the resolution of the question it was required to decide: Johnson v Johnson (2000) 201 CLR 488 and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425.  Nor could it be concluded that the Tribunal approached the exercise of its jurisdiction with a state of mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments might have been presented: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507.

18                  I can detect no error in this reasoning of the Federal Magistrate.  Nor can any other evidence of actual or apprehended bias be found in the decision-record of the Tribunal.

19                  The Tribunal's observation was open to it as part of its role as the sole arbiter of the facts.  The Tribunal is not bound uncritically to accept any and all allegations made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs  (1994) 124 ALR 265 at 278).  In any event, as the Federal Magistrate found correctly, this passage formed no part of the basis for the Tribunal's decision under review: AB 156, [18].  As such, it falls far short of the necessary requirement to establish an allegation of bias.  Where credibility is in issue, the Tribunal member must test the evidence presented, sometimes vigorously (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at 434 – 435 at [30]).  The requirements of procedural fairness will often require that an applicant be plainly confronted with matters that bear adversely on their credit or bring their account into question.  Furthermore, the decision‑maker's assessment of an applicant's credit will often depend on their demeanour and the manner in which they give evidence (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [34]). 

20                  To the extent that this ground is an allegation of actual bias, the appellant has not met the requirement that this serious allegation be firmly and distinctly made and clearly proven (see Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 531).  In the absence of any evidence, such as a transcript of the Tribunal hearing, the ground cannot be established and the material before the Court failed to provide any foundation for a claim that the Tribunal approached the matter with a closed mind or did not conduct its review in good faith. 

21                  In the circumstances, it was not unreasonable for the Tribunal member to have pressed the appellant as to whether his real reason for wanting to come to Australia was to be reunited with his parents.

            The alleged breach of s 424A(1) ISSUE

22                  Before the Federal Magistrate, the appellant alleged that in its letter to him of 11 November 2008, which invited the appellant to make any comments he might wish to make "relating to the interpretation at the departmental interview or the Tribunal hearing", the Tribunal failed to ensure that he understood that if he did not respond as invited by that letter, the Tribunal would not consider certain comments which he had made in reply to the Tribunal's s 424A notice of 3 October 2008.

23                  In response to this allegation, the Federal Magistrate firstly noted (at [23]) that, contrary to the appellant's claim, the Tribunal did consider material contained in his reply to its s 424A notice, which were summarised by the Tribunal at [90] of its decision record. Further, the Tribunal discussed this aspect of his evidence in its decision and reasons (see [112]-[116]).

24                  His Honour also found that, in any event, whether or not the Tribunal relied on particular information at its disposal was a matter for it as part of the reasoning process associated with making its decision.  In this case, the matter complained of by the appellant related to the Tribunal's analysis of the evidence and the inconsistencies in that evidence - these were not matters which met the definition of "information" for the purposes of s 424A (SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609), and thus the Tribunal was not required to make its letter of 11 November 2008 comply with the requirements of s 424A.

25                  The particulars supporting the alleged breach of s 424A take issue with the fact that the appellant maintained to the Tribunal that he did not give evidence to the delegate that there were no churches in the city in question and he brought the church from another city to the city in question and that this evidence was the result of inadequate interpreter services.  In substance, such matters relate to the Tribunal's analysis of the evidence before it and "information" for the purposes of s 424A of the Act, see SZBYR v Minister for Immigration and Citizenship 235 ALR 609 at [18]:

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

26                  Nor was the Tribunal required to ensure that its letter to the applicant of 11 November 2008 complied with the obligations of s 424A because, put simply, it was not a letter sent pursuant to s 424A.  The particulars of the information the appellant was invited to comment upon were contained in the Tribunal's letter sent on 3 October 2008: AB 93 – 97.  The appellant responded to this letter in his statutory declaration of 16 October 2008 in which he maintained that he had never received a copy of the recording of his departmental interview: AB 101, 102.  Although no request was made, the Tribunal decided to provide the appellant with copies of the CD's of the delegate's interview and to extend the time in which he could make comments in relation to the information given to him by the Tribunal's initial s 424A letter of 3 October 2008.  The 11 November 2008 letter did not provide any particulars of any new information to the appellant about which it invited comments or a response.  Instead, the letter referred to the information already given to the appellant by the Tribunal's letter of 3 October 2008.  The Tribunal's letter of 11 November 2008 provided the appellant with an abundance of procedural fairness and no breach of any mandatory statutory requirements which attached to that letter was established by the appellant.

27                  Nor did the Federal Magistrate accept the appellant's claim in oral submissions (repeated before this Court) he never received a copy of the CD containing the recording of the Departmental interview.  His Honour observed (at AB 159 , [26] – [27]) that the particulars to the second ground of review confirmed that the appellant had "carefully listened to the recording of the Departmental interview" and annotations on the Tribunal's letter to the appellant's agent noted that the two CDs were enclosed: AB 105.  In the light of these notations, this finding reveals no error.

28                  I can detect no error in the reasoning of the Federal Magistrate in relation to the alleged breach of s 424A(1) of the Act.

            The alleged failure by the Tribunal to properly and fairly consider his claims issue

29                  Before the Federal Magistrate, the appellant particularised this allegation by reference to his response to the Tribunal's s 424A notice, which included a complaint about the quality of interpreter services at the Tribunal hearing.

30                  The Federal Magistrate noted that the appellant had not led any evidence which could lead the Court to the conclusion that there was any deficiency in those services.  In all the circumstances, His Honour was not satisfied that the appellant had demonstrated that there was any material inadequacy in the interpreter services provided to him at the Tribunal hearing.

31                  No error is apparent in the Federal Magistrate's findings.  In the absence of evidence such as a transcript of the Tribunal hearing and in the face of direct evidence that the level of interpreter services was inadequate, none of which was before the Federal Magistrate or this Court, the appellant has failed to establish that:

·                    The standard of interpretation at the Tribunal hearing was so inadequate that he was prevented from giving evidence to the Tribunal; or

·                    Errors made in interpretation at the Tribunal hearing were material to the conclusion of the Tribunal and adverse to the appellant (see Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 at [17]).

32                  The Tribunal plainly considered the appellant's contention that he never gave the evidence in issue at this Departmental interview, but rejected this for the reasons it gave at AB 137 – 138, [125] – [130].

33                  As to the other matters raised by the appellant’s response to the Tribunal's s 424A notice of 3 October 2008, the Federal Magistrate found that this was merely an attempt by the appellant to seek merits, not judicial, review of the Tribunal's decision.  His Honour found that the findings which the Tribunal made were open to it on the evidence, and as such, the Court was not empowered to review them.  His Honour further noted that, in any event, it was apparent from the Tribunal's decision that it paid considerable regard to the evidence given by the appellant at various stages of his protection visa application process, including the material contained in his response to the s 424A notice.  Consequently, it could not be concluded that the Tribunal did not undertake an adequate and impartial review.

34                  I agree with the observations of the Federal Magistrate in this regard and can detect no error in this reasoning in relation to the allegation that the Tribunal failed to consider his claims properly and fairly.

            whether any other error

35                  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 considerable 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 (both at the hearing and in letters dated 3 October 2008 and 11 November 2008); made detailed 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

36                  In my opinion, the approach of the Federal Magistrate and His Honour's findings do not reveal any error of law.

37                  To the extent that the grounds of appeal seek to re‑agitate the same complaints raised before the Federal Magistrate, they cannot succeed because the findings of the Federal Magistrate demonstrate no error for the reasons outlined above.

38                  As already noted, the Tribunal essentially took an adverse view of the appellant's credibility based on a number of the inconsistencies and deficiencies in his evidence identified above.  While the appellant has implicitly sought to challenge those findings by asserting that the Tribunal was affected by apprehended bias, breached s 424A and failed to consider his claims properly and fairly, the findings remain.

39                  The Tribunal's conclusion that the appellant was not credible is a classical finding of fact (see Re Minister for Immigration and & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407). It is also recognised that in determining whether an applicant has a "well‑founded" fear of persecution, a tribunal may need to resolve questions of credit, attribute weight to particular evidence and consider the inherent improbability of events (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281 – 282).  The Tribunal was not obliged to ask any particular question of the appellant, and the weight to be given to his claims was a matter for the Tribunal to assess as part of its fact‑finding function.  It is not for this Court to conduct a review of the merits of the Tribunal's decision (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang 185 CLR 259 at 272) and there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact (see Abebe v Commonwealth (1999) 197 CLR 510).

40                  It is recognised that it is very difficult for an appellant whose basic credibility has been found wanting in tribunal proceedings to recover from that finding in subsequent reviews.  However, it should be observed that in this case the Tribunal took special care to ensure the appellant had every opportunity to fully explain his position and his evidence.  The Tribunal discussed with him at the hearing the doubts and concerns it had with his evidence and the credibility of his claims.  It also sent a letter to the appellant after the hearing on 3 October 2008, outlining the matters that caused the Tribunal concern about the appellant's credibility and which it considered could be the reason or part of the reason for affirming the decision under review.  Some of the matters contained in that letter were not strictly matters required by the operation of s 424A of the Act.  However, the Tribunal may, out of an abundance of caution or concern for fairness, put a particular line of reasoning to an applicant in circumstances where s 424A has no application (see SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [30]).  It is also clear from the appellant's response to the s 424A letter that he understood the Tribunal's concerns and took the opportunity to provide comments by his statutory declaration.

41                  The appeal should be dismissed with costs.

Associate:

Dated:         4 August 2009