FEDERAL COURT OF AUSTRALIA

SZKOO v Minister for Immigration and Citizenship [2009] FCA 1402

MIGRATION — alleged failure on part of Tribunal to consider claims advanced — findings as to credibility— alleged denial of opportunity to be heard — amendment to Notice of Appeal

Held: Appeal dismissed

Migration Act 1958 (Cth) ss 422B, 424A, 425

Federal Court Rules O 62 r 4(2)(c)

Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151, cited

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547, referred to

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1, 168 ALR 407, cited

SZFDE v Minister for Immigration and Citizenship [2007] HCA 35, 232 CLR 189, applied

SZKOO v Minister for Immigration and Citizenship [2009] FMCA 729, affirmed

Taylor S, “Informational Deficiencies Affecting Refugee Status Determinations: Sources and Solutions” (1994) 13 U Tas LR 43

SZKOO v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

NSD 938 of 2009

FLICK J

27 NOVEMBER 2009

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The Notice of Appeal as filed on 26 August 2009 is dismissed.

2.                  The Appellant is to pay the costs of the First Respondent fixed in the sum of $3,265.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of orders can be located using eSearch on the Court’s website.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     The Appellant is a citizen of China.

2                     She arrived in Australia on 20 August 2001 and lodged an application for a Protection (Class XA) visa on 3 September 2001. That application was rejected by a delegate of the Minister on 22 November 2001. An application for review was lodged with the Refugee Review Tribunal and that Tribunal affirmed the delegate’s decision on 25 March 2003.

3                     An application for review by the Federal Magistrates Court was then filed and in February 2009 that Court quashed the Tribunal’s decision by consent. A differently constituted Tribunal thereafter conducted a further review and on 24 March 2009 again affirmed the decision not to grant the protection visa. On 5 August 2009 the Federal Magistrates Court dismissed an application seeking review of the March 2009 decision of the Tribunal: SZKOO v Minister for Immigration and Citizenship [2009] FMCA 729.

4                     On 26 August 2009 the Appellant filed a Notice of Appeal in this Court.

5                     The Appellant appeared before the Court unrepresented, although she did have the assistance of an interpreter.

6                     The Notice of Appeal purports to identify 17 Grounds of Appeal.

7                     Only the first Ground of Appeal is directed to the decision of the Federal Magistrate which is presently under appeal. That Ground states as follows:

1.       The Federal Magistrates Court failed to investigate the applicant’s claim

If this Ground is intended to suggest that the Federal Magistrates Court was under a duty or had a responsibility “to investigate” the claims the now Appellant had previously advanced before the Tribunal for resolution, the Federal Magistrate committed no error in not doing so. Such was not the task entrusted to that Court. The jurisdiction of that Court and the task entrusted to it is that prescribed by Pt 8 of the Migration Act 1958 (Cth) (“the Migration Act”). In summary form, its task is to determine whether the decision of the Tribunal is affected by jurisdictional error.

8                     The first Ground of Appeal is rejected.

9                     Grounds 2 to 8 of the Notice of Appeal express errors said to have been committed by the Tribunal rather than any errors said to have been committed by the Federal Magistrate. These Grounds, however, are identical to the seven grounds upon which review was sought before the Federal Magistrate. As set forth in the Notice of Appeal, these Grounds were expressed (without alteration) as follows:

2.       The Tribunal failed to act judicially and afford procedural fairness

3.       The Tribunal did not take into account certain relevant considerations or integers central to the applicant’s claims;

4.       The Tribunal failed to consider the applicant’s claims;

5.       The Tribunal was preoccupied;

6.       The Tribunal failed to investigate the applicant’s genuine claims;

7.       The Tribunal failed to comply with s.91R(3) of the Act

8.       The Tribunal misunderstood and failed to apply the correct test in order to be satisfied as to whether the Applicant had a well-founded fear of persecution for a Convention reason on the grounds of religion.

It may safely be assumed that the Appellant wishes to contend on appeal that the Federal Magistrate erred in rejecting the same contentions.

10                  So understood, none of the Grounds has any substance. The Federal Magistrate addressed and resolved each Ground. No error is discernible in the manner in which he approached his task.

11                  Some of the Grounds were difficult to understand without elaboration.

12                  Ground 2, for example, alleges a failure to “afford procedural fairness”. Section 422B of the Migration Act provides that Div 4 of Pt 7 of the Act “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”. See: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [48], 232 CLR 189. One of those requirements is the obligation imposed by s 425 to invite a person seeking review “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. But the manner in which it is said that the Tribunal failed to afford procedural fairness in the present proceeding was not explained and was not readily apparent. The Appellant, for example, appeared before the Tribunal to give evidence and to present her arguments during the course of a hearing held on 20 March 2009. Prior to that, the Tribunal had written to the Appellant pursuant to s 424A of the Migration Act on 23 February 2009. The Appellant’s representative wrote to the Tribunal on 7 March 2009 and forwarded a further submission on 15 March 2009. A yet further submission was received on 19 March 2009.

13                  When reference is made in Ground 3 to the “relevant considerations or integers central” to the claims being advanced, the “integers” are not further identified. Nor has there been any identification of the manner in which the Tribunal “failed to consider” the claims being advanced or was otherwise “preoccupied” for the purposes of Grounds 4 and 5. There is no evidence that the Tribunal was “preoccupied” and the detailed elaboration of the claims being advanced and the manner in which they were resolved belie any conclusion other than a conclusion that the Tribunal discharged the functions entrusted to it in a careful and measured fashion. Nor was there any elaboration of the manner in which Grounds 6, 7 and 8 were sought to be advanced.

14                  Grounds 2 to 8 of the Notice of Appeal (inclusive) are rejected.

15                  The remaining nine purported Grounds of Appeal are expressed in terms of further errors said to have been committed by the Refugee Review Tribunal. These Grounds provide as follows (without alteration):

9.       The Tribunal did not centralised my claim and correctly identify my well found fears of persecution on the grounds of religion if forced to return to PRC.

10.     The Tribunal didn’t consider the my claims thoroughly. If I am forced to return to PRC, I will be the aperson of interest to the PRC authorities on the account of my religion.

11.     The Tribunal didn’t consider all the information I claimed.

12.     The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against my case in the final outcome. The Tribunal ought to use the all information for matter of reasoning and evaluation of my case for protection visa

13.     The Tribunal did not use the most updated country information to weigh against my case where the country information quoted was out of date.

14.     The Tribunal did not check thoroughly about the applicant’s husband’s situation and simply drew a conclusion that her claims is not genuine.

15.     The Tribunal did not investigate that why the applicant used a false travel document instead of the applicant’s own passport to travel since it’s the important part of the applicant’s protection claims. The applicant had to use a false travel document because the applicant can’t get her own passport and she was not permitted to get her travel document.

16.     The applicant had 17 years education doesn’t mean that she needs to know the every details of the Bible. The applicant has basic knowledge of the Bible and goes to Church all the time with the checkable evidence. The Tribunal should consider the applicant’s claims more understanding.

17.     The interpreter didn’t translate accurately which may mislead the applicant’s understanding of the Tribunal’s question.

Albeit now expressed as separate Grounds of Appeal, these claims previously emerged as Particulars of the present Grounds 2 to 8 as they were advanced before the Federal Magistrate in the Application and Amended Application before that Court. Although not identical, they are substantially the same issues as were resolved by the Federal Magistrate. Counsel on behalf of the First Respondent has quite properly accepted that nothing turns upon these arguments now being advanced as separate Grounds of Appeal as opposed to Particulars.

16                  There are perhaps two central themes running through Grounds 2 to 8 and at least some of these further Grounds of Appeal, namely contentions that the Tribunal:

 (i)                 did not consider, or did not properly consider, aspects of the claims being advanced by the now Appellant; and

  (ii)               failed to “investigate” or “check” particular aspects of the Appellant’s claim.

So construed, Grounds 9 to 17 may in large part be better characterised as but more specific attempts to give content to Grounds 2 to 8 as opposed to attempts to raise new Grounds of Appeal.

17                  However they are to be construed, they are without apparent merit.

18                  An alleged failure to properly consider the claim being advanced, for example, seems to be the concern of Grounds 9, 10 and 11 at least. This contention most probably overlaps with Grounds 3 and 4. But it is difficult to give the contention any content. The March 2009 decision of the Tribunal which was the subject of review by the Federal Magistrate contains a detailed account of the claims and evidence being advanced for consideration. The Appellant was unable to identify any claim or any evidence she maintained had been advanced for consideration by the Tribunal but not included in the Tribunal’s reasons for decision.

19                  Grounds 14 and 15 assert a failure to “check thoroughly” or to “investigate” aspects of the claim being advanced. Such Grounds probably fall within Grounds 3 and/or 6 in any event. Ground 14, for example, focuses upon the facts relevant to the Appellant’s husband. The factual analysis set forth in the Tribunal’s reasons for decision, however, denies this Ground any merit. The now Appellant had initially advanced claims that she faced persecution because she was a practitioner of Falun Gong. Those claims were later said not to have been her real claims. The claim as finally advanced was that she claimed persecution by reason of her Christian beliefs. It was in this context that her “husband’s situation” assumed relevance. Her claims founded upon her Christian beliefs were presumably sought to be supported by her husband being a Christian. The Appellant’s contention was understood to be that the Tribunal erred in that it “did not check thoroughly about the applicant’s husband’s situation …”. But a reading of the Tribunal’s reasons for decision exposes the fact that the “husband’s situation” was addressed in considerable detail. The Tribunal’s reasons thus state in part as follows:

[28] The Applicant made the following claims in her declaration:

…

·         In 1992 she married her husband, who also came from a Christian family. She and her husband continued to attend family church meetings and they were baptised on Christmas 1995. …

·         … The applicant’s husband led Brother Chen to escape and they went to Brother Chen’s home in Guangdong. …

…

·         After the applicant’s husband left for Australia, they continued to hold family church meetings but in a very quiet manner. …

…

·         … Her husband returned to China in July 2002. The applicant learned that after returning to Fujian, he was detained by the border police and sent to a police station where he was given bail awaiting further investigation. While waiting, he absconded with the assistance of church members and was smuggled to Europe in a cargo ship in the end of July 2002. He is currently in Spain.

What “investigation” or further “checks” were envisaged was not explained. None could be identified by the Appellant during the course of the hearing of her appeal.

20                  Grounds 12 and 13 appear to mirror a Ground rejected by the Federal Magistrate. Before this Court there was some initial uncertainty as to the “country information” to which these Grounds were directed.

21                  The country information referred to by the Tribunal in its reasons for decision includes a 2008 United States State Department document, a November 2007 Country Information Report from the Department of Foreign Affairs and Trade and a further report dated November 2008 by the Country Research Section of the Department of Immigration and Citizenship. There was no suggestion that there were any more “updated” reports which were available to the Tribunal but not used by it.

22                  The contention of the Appellant as explained on appeal, however, was understood to be that she had more “up to date” information by reason of what she had been told about “underground churches” by people coming out of China more recently. But, so understood, the argument is without merit. The Tribunal was unquestionably aware of the difficulties in obtaining reliable information. When referring to the Departmental Report it thus stated:

[71] … A DFAT Country Information Report dated 28 November 2007 reports on the difficulty in accessing information on underground Christians in China due to limitations in freely available information and the “political sensitivity” of the information. DFAT, in line with this advice, stated that it ‘has no specific information regarding the enforcement of the prohibition of underground churches in Fujian generally, or in Fuqing in particular”.

It was perhaps for this reason that the Tribunal extended to the now Appellant the opportunity to provide further information to the Tribunal. The reasons for decision of the Tribunal thus state in part as follows:

[44] The Tribunal invited the applicant to speak of her own involvement with the underground church in China. …

The Tribunal then set forth what it was told and continued in respect to one aspect of her claims:

The Tribunal noted that this was not the information contained in the independent sources.

The potential relevance of the “independent sources” was thus brought to the Appellant’s attention in the very context in which she claimed that the Tribunal did not have regard to “updated reports”. If those “updated reports” are reports as to what the Appellant had been told by others, she was given the opportunity to present them to the Tribunal for its consideration.

23                  During the course of the hearing of the appeal the Appellant repeatedly contended that the Tribunal had erred in not believing the claims she was advancing. This contention was variously expressed and ranged from a contention that the Tribunal was “preoccupied” to a contention that it was biased against her. The Tribunal did indeed make adverse findings of credit against the Appellant. In respect to particular aspects of her evidence the Tribunal made repeated findings that the Appellant “had been untruthful in her evidence”. One aspect of her evidence was her explanation for failing to more expeditiously pursue her rights of review. Given that the delegate initially made his adverse decision refusing her application for a visa in 2003 and that the now Appellant did not apply for review of that decision until 2008, this issue not surprisingly emerged as an issue to be pursued. The Tribunal recounted a chronology of events relevant to her application and concluded:

[83] The applicant was unable to offer a satisfactory explanation as to her motivations in not pursuing the protection visa. …

More generally, the Tribunal concluded:

[85] The combination of these reasons causes the Tribunal to find that the applicant has been untruthful in her evidence and the Tribunal does not accept the applicant’s claims. …

24                  The Appellant contended that when explaining her case to the Tribunal she was “nervous”. Given the importance to her of the claim that she was making, so much may be expected. Indeed, it is important to constantly recall the difficult circumstances in which applicants for refugee status are called upon to give an account of their circumstances: Taylor S, “Informational Deficiencies Affecting Refugee Status Determinations: Sources and Solutions” (1994) 13 U Tas LR 43. In Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 at 194, Foster J also helpfully gave the following reminder:

It is well to remember that self-contradictory statements and apparent evasiveness, although of obvious importance, do not necessarily require a conclusion that the witness is being untruthful in those aspects of his or her evidence or, more significantly, that the whole of his or her evidence should be rejected.

In the case at hand, the Tribunal has carefully set forth the claims being advanced by the now Appellant and has made findings of fact by reference to the materials before it. In such a context, those findings are findings for the Tribunal alone and not this Court: cf Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 552 and 559. Such findings are findings of fact falling far short of jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67], 168 ALR 407 at 423 per McHugh J.

25                  Ground 16 is perhaps best construed as a specific instance of the manner in which the Appellant sought to advance her challenge to the Tribunal’s adverse findings as to credit or perhaps her challenge that the Tribunal was biased against her. She was unable, however, during the course of the appeal to provide any instance of any question being put to her by the Tribunal as to her understanding of the “details of the Bible” which could be construed as demonstrating bias or prejudgment of the claims advanced. There was no basis upon which any conclusion could be reached that the “interpreter didn’t translate accurately” for the purposes of Ground 17.

26                  During the course of the hearing of the appeal, the Appellant also submitted that before the Federal Magistrate, she had been denied an “opportunity to speak” and an opportunity to identify errors said to have been committed by the Tribunal. No such contention was raised in any of her Grounds of Appeal. Leave to amend those Grounds may, of course, be granted in an appropriate case. But leave should not here be granted. There is no evidence to support the submission.

27                  Grounds 9 to 17 of the Notice of Appeal (inclusive) have each been separately considered. They are rejected as being without merit and they disclose no appellable error.

28                  The appeal is to be dismissed with costs. There is no reason why costs should not follow the event. The First Respondent seeks an order for costs fixed in the amount of $3,265 pursuant to O 62 r 4(2)(c) of the Federal Court Rules. An Affidavit has been filed in support of the amount claimed and it is appropriate that such an order be made.

ORDERS

29                  The Orders of the Court are:

1.                  The Notice of Appeal as filed on 26 August 2009 is dismissed.

2.                  The Appellant is to pay the costs of the First Respondent fixed in the sum of $3,265.

Associate:

Dated:         27 November 2009