SZEYB v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2006-02-27|Before: Edmonds J

Edmonds J: 1 This is an appeal from a judgment of the Federal Magistrates Court (Smith FM) delivered on 8 September 2005.

Background 2 The appellant, who is a 30 year old Chinese citizen from Fu Qing City in the Fu Jian region of China, arrived in Australia on 23 January 2004, travelling on a visitor visa. On 3 February 2004, he lodged an application for a protection (class XA) visa. He claimed to fear persecution because of his assistance of Falun Gong practitioners. 3 After the Minister's delegate refused the appellant's protection visa application on 10 February 2004, the appellant applied to the Refugee Review Tribunal ('the Tribunal') to review that decision on 1 March 2004. 4 On 8 April 2004, the Tribunal invited the appellant to attend a hearing. This invitation was later re-issued and the hearing date re-scheduled in order to ensure that the appellant had been given the statutory time required to respond prior to the hearing. On 5 May 2004, the appellant accepted the Tribunal's invitation to attend the hearing. 5 On 13 May 2004, the Tribunal held a hearing at which the appellant gave oral evidence. On 14 May 2004, the Tribunal wrote to the appellant and invited him to comment on information, which the Tribunal considered would be the reason, or part of the reason for affirming the delegate's decision. The Tribunal did not receive any response to its letter of 14 May 2005 and accordingly made its decision on 1 June 2004 which was handed down on 28 June 2004. It affirmed the decision to refuse to grant the visa.

The Tribunal's Decision 6 The Tribunal made significant adverse credibility findings about the appellant. In doing so the Tribunal based its decision on a 'significant level of inconsistencies' between the appellant's written and oral testimony. The Tribunal - (a) considered inconsistencies in the appellant's evidence including: (i) whether the appellant had had any dealings with Falun Gong practitioners at all; (ii) whether he knew the destination of those people he was assisting to leave China; (iii) whether he had met the persons whom he was assisting to leave China; and (iv) the circumstances in which he departed China, in particular those surrounding his obtaining a passport and Australian visa. (b) was not satisfied that the appellant was involved in the assistance of any Falun Gong practitioners in leaving China as he claimed. (c) was not satisfied that the appellant is a person wanted by the Chinese authorities for the reasons he alleged; (d) found that the appellant does not have a well-founded fear of persecution for a Convention reason; and (e) found that even if that Tribunal had accepted the appellant's claims, the facts disclosed by those claims do not constitute persecution for a Convention reason. In that regard, the Tribunal found that the appellant's alleged activities were contrary to laws of general application in China.

The Court Below 7 In the Court below the learned Federal Magistrate: (a) found no flaw in the Tribunal's principal reasoning for the affirmation of the decision, which he found to have turned on a credibility finding; (b) addressed each of the remaining grounds of review raised by the appellant's Amended Application; and (c) found the decision to be a privative clause decision.

Appeal to this Court 8 By his original application filed with the Federal Magistrates Court on 16 July 2004, the appellant raised the following grounds of review: '(1) That in making the Decision, the Tribunal has denied the Applicant natural justice or procedural fairness (2) That the Decision involved and [sic] error of law whether or not the error appears in the record of Decision. (3) That the Tribunal may appear to be bias towards the Applicant. (4) That there was no evidence to justify the Decision (5) That the Decision was otherwise contrary to law (6) That the Decision did not take into account the applicant's claims that he was in danger if returned to The Peoples Republic of China. (7) That procedures required by law were not observed when making the decision. (8) That there has been a failure by the Tribunal to exercise jurisdiction.' 9 These grounds are, save for some very minor differences in expression, identical to those set out in the Notice of Appeal filed in this Court. The appellant has not sought to tailor the grounds of appeal to the decision of the Federal Magistrate. Rather, the grounds continue to complain about the conduct of the Tribunal. 10 The appellant had, however, filed an Amended Application in the Court below which the Federal Magistrate treated as a reformulation of the grounds set out in the original application. At [19] his Honour said: 'His original application contained only a list of general heads of judicial review, adopted from a precedent without any apparent effort to relate them to the decision of this Tribunal. In the absence of particulars, and since they appear to be better canvassed in his amended application, I do not think it necessary for me to go through them.' 11 The appellant was unrepresented at the hearing before me, did not rely on any written submissions and declined an invitation to make any oral submissions. In the circumstances, it seems appropriate to consider the grounds of appeal as put forward by the appellant in his Notice of Appeal and, where relevant, the Federal Magistrate's approach to those grounds as reformulated in the Amended Application. 12 The Tribunal's decision is a privative clause decision for the purpose of s 474 of the Migration Act 1958 (Cth) ('the Act'). Accordingly, the decision can only be set aside where there has been a 'failure to discharge "imperative" duties or to observe "inviolable limitations or restraints"': see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.

Ground 1: 'That in making the decision, the Tribunal has denied the Applicant natural justice or procedural fairness' 13 The appellant was afforded an opportunity to attend the Tribunal hearing and give evidence, which he did. 14 In the course of that hearing the Tribunal observed the following procedures: (a) The Tribunal invited the appellant to give evidence; (b) the Tribunal re-issued the invitation and re-scheduled the hearing in order to ensure that the proper notification periods had been observed; (c) the Tribunal heard the appellant give oral evidence; (d) the Tribunal ultimately made its finding on the basis of a lack of credibility on the part of the appellant by reason of his inconsistent claims and evidence; (e) the Tribunal put to the appellant, by its letter of 14 May 2005, particulars of the inconsistencies and invited the appellant to comment as to the inconsistencies consistent with the requirements of MIMA v Al Shamry (2001) 110 FCR 27 and SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162. 15 There is nothing before me which would suggest that the Tribunal failed to comply with the relevant procedures prescribed by the Act. Section 422B provides: '422B Exhaustive statement of natural justice hearing rule (1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. (2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.' There is, therefore, nothing which makes out the allegation of a denial of natural justice or procedural fairness. 16 The corresponding ground in the appellant's Amended Application below was ground 9. That ground was formulated as follows: 'The Tribunal in making the decision has denied the applicant natural justice or procedural fairness. Particulars: (a) The Tribunal failed to acknowledge the fact that the delegate of the Department of Immigration when making his decision on a very complex and detailed submission of claims, made a hasty decision to refuse the application in a matter of mere days, without first testing those claims at interview or asking for further evidence. (b) The Tribunal failed to acknowledge that the applicant used a false passport to arrive in Australia and in its decision used the fact that he had traveled [sic] outside China on numerous occasion[s] on his real passport as an issue in which to manufacture the refusal of said application. By this action and interpretation by the Tribunal, it has failed to recognize the fact that he had only recently become a target of the Chinese police in the months just before his departure, which then necessitated the use of a false passport in which to escape detection by the authorities.' 17 In relation to this ground the Federal Magistrate held, at [27] - [29]: '27. Ground 9 paragraph (a) alleges that there was a denial of procedural fairness due to failures by the Tribunal to make certain findings in relation to the delegate's reasoning and processes. However, it was no function of the Tribunal when conducting its review to make such findings nor to enter into an examination of those issues. Its failure therefore cannot be a denial of procedural fairness nor any other jurisdictional error. 28. Ground 9 paragraph (b) appears to contain two separate complaints. The first is that the Tribunal failed to address the implications favouring the applicant's refugee claims from the fact that he used a false passport to arrive in Australia. However, I am not persuaded that the Tribunal did not consider those facts. It refers to them in the course of its narrative of the evidence. It does not say that it rejected the claim that this happened. In my opinion, it was not bound by its duties to review the applicant's claims to find that his use of a false passport proved the truth of his story as to how he came to use it. I do not think there was any jurisdictional error in the Tribunal's treatment of this matter. 29. The second complaint suggests error by the Tribunal in its use of "the fact that he had travelled outside China on numerous occasions on his real passport". The Tribunal refers to evidence of this in its background narrative, but I am unable to identify in its reasoning any point at which it used that information adversely to the applicant. I do not read its reasons as showing that it failed to recognise that this travel happened before the incidents which the applicant claimed to have caused him to need to use a false passport.' 18 I am unable to discern any error in this approach.

Ground 2: 'That the Decision involved an error of law' 19 The Tribunal's central finding was that the appellant did not have a fear which was well-founded for a Convention reason. The Tribunal reached this finding having regard to the view it had formed as to the appellant's credibility, by reason of the significant levels of inconsistency in the appellant's evidence. It is well established that credibility is a matter for the Tribunal par excellence: See MIMIA v Durairasingham (2000) 168 ALR 407. The findings of the Tribunal both in respect of credibility and well-founded fear were entirely open to the Tribunal on the evidence before it. The Federal Magistrate so found and it was open to him to do so. In doing so the Federal Magistrate rejected the appellant's contention in his Amended Application that findings about his credibility were unreasonable in the sense which would amount to jurisdictional error: See [22]. 20 The appellant's Amended Application also alleged that the Tribunal had ignored relevant considerations in making its decision. Ground 7 of the Amended Application reads: '7. The Tribunal has ignored relevant considerations in making its decision. Particulars: (a) The Tribunal has not taken or adequately taken into consideration the applicant's claim that he had previously been and was still sought as a person of interest for helping Falun Gong practitioners and other dissidents escape captivity in China. (b) The Tribunal has not taken or adequately taken into consideration the applicant's claim, that Chinese government police had gone to his home to arrest him for his alleged activities. (c) The Tribunal has not taken or adequately taken into consideration the fact that there may be flawed memory recall in regarding specific details experienced by the people such as the applicant because of trauma or persecution surrounding the events of the past. (d) The Tribunal has not taken or adequately taken into consideration that in his original application and subsequent hearings, those persons involved in the translations may have misinterpreted the translated material both oral and written. For example; in the Tribunal's written decision at, "Reason for Decision-The Applicant's Fishing Business". The Tribunal does in fact state; "The Tribunal accepts that in many instances it would be difficult to expect an Applicant's oral testimony to be identical with his written".' 21 The Federal Magistrate addressed this ground at [23] - [25] of his reasons: '23. Paragraph 7 particulars (a) and (b) allege jurisdictional error of a similar character. I think they amount to no more than arguments challenging the merits of the Tribunal's assessment of the evidence. The matters referred to were implicitly addressed and rejected by the Tribunal in its credibility finding which I have extracted above. 24. Ground 7 paragraph (c), in my opinion, does not raise a ground with relevance to the present Tribunal's reasoning. The applicant has not pointed to any claim raising issues about his having flawed memory recall, and I do not read the path of the Tribunal's reasoning as requiring it to reflect on the matter. Its reasoning compared versions of events given by the applicant, and found them so inconsistent that it could not accept the applicant as a truthful witness generally in relation to his claims relating to assistance to Falun Gong practitioners. It was open to it to do this. 25. Ground 7 paragraph (d) is unsustainable in my opinion in the absence of any evidence before me that there were mistranslations of evidence given to the Tribunal.' 22 There is no jurisdictional error on this ground.

Ground 3: 'That the Tribunal may appear to be bias toward the Applicant' 23 The Tribunal did not accept the appellant's evidence, as it was entitled to do: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. 24 If an allegation of bias is to be made it must be distinctly made and clearly proved: Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) 205 CLR 507 at [69]. Moreover, it is a rare circumstance where such a lack of good faith/bias on the part of the Tribunal will be apparent merely from written reasons: SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 at [16] per Tamberlin, Mansfield and Jacobson JJ citing SCAA v Minister for Immigration & Multicultural Affairs [2002] FCA 668 at [38] per Von Doussa J with approval (see also [36] to [37] of SCAA). The respondent submitted that there was no evidence of actual bias on the part of the Tribunal, nor anything on the face of the decision which gave rise to any apprehension of bias. I agree, and it follows that this ground must fail. 25 The ground of bias was raised in the Court below by the appellant's Amended Application. The basis of the allegation was said to be the matters set out in the particulars to Ground 9: See [16] supra. In relation to this allegation of bias the Federal Magistrate found at [30]: 'Since I do not consider that any of the complaints raised by grounds (a) and (b) in paragraph 9 are made out, the basis for the claim of bias which appears to be related to those allegations has not been made out either. The applicant has pointed to no other material before me upon which an allegation of bias could properly be made, and I reject it.' 26 Having regard to my agreement with the approach adopted by his Honour in respect of the matters set out in paragraphs 9(a) and (b) there is no basis upon which the allegation of bias could be sustained. Again, this finding is uncontroversial and does not give rise to any jurisdictional error.

Grounds 4 and 5 27 Grounds 4 and 5 are formulated as follows: '[4] That there was no evidence to justify the Decision. [5] That the Decision was otherwise contrary to law.' 28 In the absence of particulars of these grounds, there is nothing apparent from the decision of either the Tribunal or the Federal Magistrates Court to make out these grounds. There is no jurisdictional error and these grounds must also fail.

Ground 6: Integer of claim 29 The appellant alleges that the Tribunal failed to address an integer of his claim. However, the integer suggested is 'the Applicant's claims that he was in danger if he returned to the PRC'. The decision, by its very nature in considering persecution pursuant to the Convention, necessarily considered, addressed and took in to account the appellant's claims as to the alleged danger he faced upon return to China. 30 The Tribunal explicitly considered the appellant's claims in that regard and found that the appellant's claims upon which he claimed such a fear were not credible. The Tribunal went on to apply the 'what if I am wrong approach' expounded in Minister for Immigration and Multicultural Affairs v Raialingham (1999) 93 FCR 220in relation to the appellant's claims. In doing this, the Tribunal found that even if the appellant's claims were accepted, the appellant's actions were in breach of Chinese law. There is no jurisdictional error in respect of this ground.

Grounds 7 and 8 31 Grounds 7 and 8 are formulated as follows: '[7] The procedures required by law were not observed when making the decision. [8] That there has been a failure by the Tribunal to exercise jurisdiction.' 32 Again, in the absence of particulars of these grounds, there is nothing apparent from the decision of either the Tribunal or the Court below to make out these grounds. There is no jurisdictional error apparent and grounds 7 and 8 must fail.

Conclusion 33 The appeal must be dismissed with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate: Dated: 27 February 2006 Solicitor for the Appellant: The appellant appeared in person

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