SZEQH v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The appellant claims to be a citizen of the Peoples Republic of China. He arrived in Australia on 3 March 2004. On 2 April 2004, he lodged an application for a protection visa. On 8 April 2004, a delegate of the first respondent (the "Minister") refused the application. The appellant applied to the Refugee Review Tribunal (the "Tribunal") for review of that decision. That application was refused on 31 August 2004. For reasons which I do not presently understand, the decision of the Tribunal was, on 14 March 2006, set aside by consent and the matter remitted to the Tribunal. A differently constituted Tribunal reconsidered the matter and, on 15 June 2006, refused to review the original decision. The appellant applied to the Federal Magistrates Court for review of that decision. That application was unsuccessful. This is an appeal from the Federal Magistrate's decision. 2 The basis of the application was the appellant's claim to fear persecution in China for reason of his religious belief. He claimed to have been active in an unofficial Christian Church in China, frequently described as "The Shouters" and that he was arrested on two occasions. He came to Australia shortly before the true extent of his activities became known to the police. The Tribunal rejected his claim to have been arrested. 3 A significant aspect of the case was the evidence of a person of Chinese background who lives permanently in Australia. She informed the Tribunal that the appellant, with two other people, had come to Australia under her sponsorship and, apparently, at her invitation, purportedly in order to conduct research into digital video recorder systems. The witness's evidence, put broadly, suggested that the appellant, had paid money to one of the other persons to facilitate his entry to the country, that he had not come for the nominated purpose and that he intended to apply for a protection visa. The witness first conveyed this information to the Department by letter. She subsequently gave oral evidence in the Tribunal. 4 The appellant asked on at least two occasions to be allowed to cross-examine her, but he was not permitted to do so. On each occasion the Tribunal asserted that he had no entitlement to cross-examine another person, apparently relying upon the provisions of s 427(6)(b) of the Migration Act 1948 (Cth) (the "Act"). A perusal of that section does not justify such reliance. Subsection (6) provided: A person appearing before the Tribunal to give evidence is not entitled: (a) to be represented before the Tribunal by any other person; or (b) to examine or cross-examine any other person appearing before the Tribunal to give evidence. 5 Pursuant to s 425(1) the Tribunal could invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. In other words, an applicant who attended upon the Tribunal did so for two purposes, to give evidence and to present arguments. It is at least arguable that s 6 applied to people who attended to give evidence only, and not to an applicant who would usually also appear to advance arguments. The other sections in Part VII Division 4 suggest that an applicant is a party rather than a mere witness. 6 However a number of authorities suggest, or at least imply, that s 427(6)(b) had the effect suggested by the Tribunal. In particular, in Algama v The Minister for Immigration and Multicultural Affairs, 115 FCR 253, at 266, the Full Court at least assumed that interpretation. Assuming that approach to be correct, it does not follow that the section excludes a discretion in the Tribunal to permit cross-examination. It is arguable that the Tribunal should at least have considered whether it was appropriate to exercise such a discretion. 7 The matter is, of course, more complex, requiring consideration of the various sections in Part 7 Division 4 including, in particular, s 422B, s 425 and s 427. I have not formed a concluded view about this matter. I have rather decided that it is appropriate that I issue a certificate pursuant to O 80. The matter is of some considerable importance. The Minister's preferred view does not derive much support from the Act itself. The relevant authorities, of which there are a number, appear not to have addressed the question directly. Argument on that matter should be adjourned to a date to be fixed. It is, however, appropriate that I dispose of a number of other arguments which have been raised by the appellant, simply so that they do not take up any further time. Anything that I say is conditional upon the ultimate resolution of the cross-examination question. 8 The appellant asserted that the Tribunal failed to comply with ss 424A and 425. However he failed to identify any breach by the Tribunal of either section. He rather asserted that it had not asked him questions which he needed to be asked in order to give a full account of himself. Neither section is intended to achieve that result. The appellant was given an appropriate opportunity to explain himself. There was no failure to explain to him what was required. A s 424A letter was sent and was quite detailed. The appellant's response was recorded in detail. There is no substance in this complaint. 9 It was also submitted that the Tribunal was biased. The only particular aspects to which the appellant pointed were its refusal to accept aspects of his evidence and the fact that, as he said, the Tribunal expected him to be able to remember the names of churches which he attended with his parents when very young. The first complaint could not establish bias. The second reflects an unfair assessment of the Tribunal's approach to the matter. It was addressing inconsistencies between versions given by the appellant at different times. There is no evidentiary basis for a finding of bias. 10 The appellant also submitted that the Tribunal had failed to take account of two documents, US State Department Country Reports on Human Rights Practices in 2003 and 2004. The Federal Magistrate held that there was no evidence that the documents had been supplied to the Tribunal by the appellant. There is still no such evidence. As I understood the appellant, he conceded that they may not have been so provided. 11 The remaining ground appears to be that: 'The federal magistrate erred in law, because the Tribunal failed to consider my claims properly or ignored my important claims intentionally or misunderstood my claims or made a wrong finding'. 12 That, of course, is not a ground of appeal at all. The appellant's concern seems to be that his claim was not accepted for reason of lack of credibility. That question may have been affected by his proposed cross-examination. It is not appropriate that I say any more about it until that question has been explored. I should say that there is no ground of appeal dealing with the cross-examination point. However the appellant has raised it on numerous occasions. He is self-represented. He should not be excluded from raising the point at this stage. 13 I propose to refer the appellant to the Registrar for referral to a legal practitioner on the Pro Bono Panel for legal assistance in relation to these proceedings, the question being whether, having regard to the terms of Part VII, Division IV of the Migration Act 1958 (Cth) and to the decisions of the Full Court in Algama, WABZ v The Minister for Immigration and Multicultural Affairs [2004] FCAFC 30, the cases therein cited and any other relevant decisions, it is open to the appellant to argue in these proceedings that an applicant appearing in the Tribunal, pursuant to s 425, may, or may, by leave, cross-examine a witness and whether the appellant has an arguable ground of appeal in this regard. I order that a certificate issue accordingly. I otherwise adjourn this matter to 10.15 on 6 March 2008 with costs reserved. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.