FEDERAL COURT OF AUSTRALIA

SZNUX v Minister for Immigration and Citizenship [2010] FCA 182

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs fixed in the sum of $2,400.00

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                     The appellant appeals from a judgment of the Federal Magistrates Court of Australia delivered on 18 November 2009 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 8 July 2009.  The Tribunal’s decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to refuse to grant a Protection (Class XA) visa to the appellant.

Background

2                     The appellant is a citizen of China who arrived in Australia on 29 November 2008. On 30 December 2008 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.  A delegate of the Minister refused the application for a protection visa on 23 March 2009.  On 16 April 2009 the appellant applied to the Tribunal for a review of that decision.

3                     In his application for a protection visa, the appellant said that from 1980 to 2008 he had worked in a particular state-owned restaurant at Kaifeng City in Henan Province that was suddenly contracted to a private operator in June 2008.  The operator brought in his own employees and, as a result, some 60 former restaurant employees including the appellant became unemployed and did not receive compensation.

4                     He said that in June and July 2008 the former employees approached government leaders to lodge their grievances on many occasions, but their complaints were ignored.  He said that in August 2008 they gathered at a city government building to request compensation and to demand re-employment, but that, instead of their grievances being redressed, the appellant and two others were accused of being troublemakers.  He said that they were detained and sent to a detention centre where they were tortured and interrogated and forced to make admissions.  He said that they were released after some 10 days, having admitted that they were troublemakers, and having been warned not to make any further trouble.  After his release he said that he “revenged certain individual leaders” and, for that reason, he was being chased by the Chinese authorities.  On interview (but not in his original application) he said that, because of this, he relocated from Kaifeng City to the homes of friends and relatives in Zhengzhou City in the same province, and then to Jiangsu Province.  He said that “with no other choice left”, he decided to come to Australia to seek asylum.

The Tribunal’s Decision

5                     The Tribunal considered that the appellant’s claims lacked credibility and were inconsistent in several respects.  It found that he was vague when giving oral evidence and unable to provide significant details in response to questions.  The Tribunal did not accept that the appellant had given a truthful account of his experiences in China; or that he was dismissed in the circumstances claimed and not given compensation; or that he and others undertook action as claimed; or that he and two other workers were detained or subjected to mistreatment.  Furthermore, the Tribunal did not accept that the appellant sought revenge on any leaders; or that he went into hiding; or that he was wanted by the PSB or any other authorities in China; or that he would be gaoled or otherwise subjected to adverse attention or treatment on return to China.

6                     The Tribunal did accept that the appellant was unemployed and may have been unemployed prior to his departure from China.  It accepted that he was concerned about his employment prospects on return to China, particularly given his age, and also about the possible effects that his unemployment would have on his family.  However, whilst it considered such problems to be unfortunate, it did not accept that they were in any way related to the claims he had made for refugee status.  The Tribunal found that the appellant did not have a well-founded fear of persecution now or in the reasonably foreseeable future.  The Tribunal affirmed the decision of the delegate.

Federal Magistrates Court

7                     By application filed in the Federal Magistrates Court on 4 August 2009, the appellant sought judicial review of the Tribunal’s decision.  In that application, the grounds of review were framed as follows:

1.                  Refugee Review Tribunal had bias against me and failed to consider my application according to S91R of the Migration Act 1958.

2.                  The Refugee Review Tribunal failed to consider my application according to S424A of the Migration Act 1958. The Tribunal failed to notify me the reason or part of the reasons for affirming the decision of the DIAC. I was not given an opportunity to explain my case.

[Errors in original]

8                     In relation to ground 1, the Federal Magistrates Court found that neither actual nor apprehended bias in the sense considered in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 had been made out.  There was nothing in the material before the court to indicate that the Tribunal had a closed mind; nor was the decision such as to indicate, from the perspective of the appropriately informed fair-minded lay observer, an apprehension of bias or a closed mind.  The Federal Magistrates Court noted that the Tribunal’s reasoning indicated that, in some respects, it had given the benefit of the doubt to the appellant.

9                     The Federal Magistrates Court similarly found that there was no substance in the appellant’s contention that the Tribunal failed to consider his application according to s 91R of the Migration Act 1958 (Cth) (the Act).  The Federal Magistrates Court considered that, as the Tribunal had rejected the factual basis of the appellant’s claims, it was not necessary for it to go on to consider whether, had it accepted that these events had occurred, they would have constituted “serious harm” within s 91R of the Act.

10                  In relation to ground 2, the Federal Magistrates Court found that there was nothing in the material before the Court to indicate that the Tribunal had failed to comply with s 424A of the Act by failing to put to the appellant for comment “information” in the sense considered in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 that was not within any of the exceptions in s 424A(3) of the Act.

11                  More generally, the Federal Magistrates Court found that the Tribunal raised with the appellant the particular difficulties it had with his claims, and that the appellant was given the opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review, as required by s 425 of the Act.

12                  Having found no jurisdictional error in the Tribunal decision, the Federal Magistrates Court dismissed the application, with costs.

Appeal To This Court

13                  On 7 December 2009 the appellant filed a notice of appeal in this Court.  The grounds of appeal were framed as follows:

1.                  For life, I had to go to the Local government to request the compensation for our loss of job, which caused my being detained and sent to Kafeng Detention Centre.  I suffered brutal torture and interrogation.  During the days of police custody, I suffered mistreatment both physically and mentally.  After my release, I revenged certain leaders so I was chased.  With no choice left, I had to come to Australia to seek asylum. The Refugee Review Tribunal had bias against me and failed to consider my application according to S 91R of the Migration Act 1958.

2.                  The Federal Magistrates Court Judge didn’t point out The Refugee Review Tribunal’s jurisdictional error while it decided my application for protection visa.

[Errors in original]

14                  The first five sentences of ground 1 relate to factual matters that were the subject of findings by the Tribunal.  It is plain that a reconsideration of the merits of the Tribunal’s decision is not available in proceedings for judicial review of that decision or in this appeal: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.  The balance of ground 1 mirrors the first ground of review in the appellant’s application in the Federal Magistrates Court.  It points to no error in the decision of the Federal Magistrates Court.  Read literally, ground 2 of the notice of appeal simply states a factual matter and does not identify an appealable error. 

15                  I have treated grounds 1 and 2 of the notice of appeal as alleging, in substance, that the Federal Magistrates Court erred in the findings and conclusions to which it came with respect to each of the grounds raised in the appellant’s application filed in that court.  No objection was taken by the Minister to my reading and treating grounds 1 and 2 in this way.

16                  The appellant appeared in person with the assistance of an interpreter and made oral submissions.  The substance of those submissions was that the Tribunal’s decision was wrong because, as a matter of fact, he was persecuted in China and that, concomitantly, neither the Tribunal nor the Federal Magistrates Court considered his case very seriously.  In a similar vein, he said that he was of the view that the independent country information used by the Tribunal was not accurate.  These submissions were really an invitation to review the factual findings which the Tribunal had made.  No submissions were directed to the existence of any appealable error in the findings or conclusions of the Federal Magistrates Court in undertaking judicial review of the Tribunal’s decision.  In these circumstances I have reviewed those findings and conclusions with a view to seeing whether they are attended by error.  I have been assisted in this task by the written and oral submissions made on behalf of the Minister. 

17                  The gravamen of the Minister’s submissions was that no jurisdictional error in the Tribunal’s decision and procedures, and no error in the decision of the Federal Magistrates Court, have been demonstrated.  I agree. 

18                  Specifically, there is no substance in the allegation that the Tribunal was biased against the appellant. The Federal Magistrates Court was correct to reject that allegation.  The fact that the Tribunal did not accept the truthfulness of many of the appellant’s claims about what occurred to him in China, or was not otherwise prepared to accept the accuracy of his claims, does not establish the existence of bias.  There is no other material that would establish, or indeed even suggest, bias on the part of the Tribunal.  For completeness I should add that there is nothing in the material that I have seen that would sustain a claim of apprehended bias.

19                  The allegation that the Tribunal failed to consider the appellant’s application according to s 91R of the Act is also without substance.  As the Federal Magistrates Court correctly pointed out, because the Tribunal had rejected the appellant’s factual claims, it was not necessary for the Tribunal to go on to consider whether, had it accepted that the claimed events had occurred, they would have established the requisite elements of s 91R of the Act. 

20                  The Federal Magistrates Court concluded that the Tribunal did not fail to comply with s 424A of the Act.  In my view that conclusion was correct.  Specifically, the independent country information consulted by the Tribunal about whether restaurants in Kaifeng City were government-owned up to 2008 and whether they were privately contracted out in 2008, and also about workers in state-owned enterprises (including restaurants) and the processes for workers lodging complaints and grievances in China, and resolving labour disputes, both prior to and after 2008, was not required to be disclosed under s 424A of the Act because this information fell within the exception in s 424A(3)(a) of the Act:  Minister for Immigration and Multicultural and Indigenous Affairs v NAMW  (2004) 140 FCR 572; VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92.  But, in any event, the record of the Tribunal’s decision shows that, on 1 July 2009, the Tribunal discussed the independent country information with the appellant, who indicated where and in what ways he disagreed with that information.  The Tribunal informed the appellant that the information may be a reason for affirming the decision under review and that he was entitled to request a further opportunity to comment on the information that was put to him:  see ss 424A(2A) and 424AA.  There is nothing to suggest that the appellant made any such request. 

21                  In relation to his claim that he was not given an opportunity to explain his case, the record of the Tribunal’s decision shows that the appellant was invited to attend and did attend two hearings before the Tribunal, which lasted in excess of four hours, during which the appellant’s claims were discussed in detail.  He was given an opportunity to give evidence and to present arguments relating to the issues arising in relation to the decision under review.  There is nothing in the record of the Tribunal’s decision that would indicate that it failed to comply with s 425 of the Act in any respect.  The Federal Magistrates Court correctly concluded that the ground based on a failure to comply with s 425 of the Act had not been made out.  I should add that a reading of the record of the Tribunal’s decision shows that the Tribunal gave thorough consideration to the appellant’s application.

22                  No error has been demonstrated in the findings or conclusions of the Federal Magistrates Court.  It follows that the appeal should be dismissed. 

23                  As to the question of costs, the Minister relies on the affidavit of Nicola Johnson sworn 18 February 2010 in which the sum of $2,400.00 is claimed for costs.  This sum is less than the amount recoverable in accordance with Item 43H of Schedule 2 to the Federal Court Rules.  I am satisfied on the evidence that the claimed sum is a fair estimate of party-party costs for the professional work to which it relates. 

24                  The appellant submitted that, in the event that his appeal was unsuccessful and an order for costs was made against him, he would be unable to pay costs in that sum because his financial situation is very poor.  That is not a sufficient reason to fix the costs in any other sum or to depart from the usual order that costs should follow the event.

25                  The appellant should pay the Minister’s costs fixed pursuant to O 62 r 40C(4) in the sum of $2,400.00.

Associate:

Dated:         8 March 2010