SZGVQ v Minister for Immigration and Citizenship

PROCEEDINGS BEFORE THE TRIBUNAL 4 On 8 February 2005 the appellant applied to the Tribunal for a review of the delegate's decision. 5 The decision of an earlier Tribunal handed down on 23 June 2005 was set aside by the Federal Magistrates Court on 27 July 2006 and remitted to a second Tribunal. 6 On 6 November 2006 the Tribunal sent the appellant a letter pursuant to s 424A of the Migration Act 1958 (Cth) ("the Act") inviting comment by 20 November 2006 in relation to certain identified information which it stated might be the reason for affirming the decision under review. On 20 November 2006 the Tribunal received a statutory declaration from the appellant in response. 7 The Tribunal concluded that the appellant was not a credible witness due to his "inconsistent, contradictory and implausible" evidence. It was not prepared to accept his claims as true. In particular, the Tribunal found the appellant was not involved in a union or a union demonstration and was not detained, assaulted and later released following the payment of a bribe by his family. The Tribunal noted that the appellant used a passport in a different name, but did not accept that he was of adverse interest to the authorities because of his political opinion. The Tribunal also rejected his claim that his wife was harassed by authorities or that his son fears being detained by Chinese authorities. The Tribunal was therefore not satisfied that the appellant had a well-founded fear of persecution for a Convention reason.

PROCEEDINGS BEFORE THE FEDERAL MAGISTRATE 8 In his amended application to the Federal Magistrates Court filed on 18 April 2007, the appellant claimed that: (a) There was an error of law in the Tribunal's decision constituting a jurisdictional error; (b) There was procedural error in the Tribunal's decision constituting an absence of natural justice. (Transcribed from the original without alteration or amendment) 9 In his particulars, the appellant claimed that: (a) Ms. Ann O'Toole, the Presiding member of The Tribunal ("the Presiding Member"), failed to comply with her obligations under s 424A of the Act. (b) The Presiding Member failed to consider my evidences, properly and fairly. (c) The Presiding Member of The Tribunal ("the Presiding Member"), failed to comply with her obligations under s 425 of the Act. (d) In summary, I have never ever agreed that my application has been assessed by the Tribunal fairly and carefully. 10 Her Honour, after detailed consideration, found no breach of s 424A on the part of the Tribunal. 11 The second particular was rejected as seeking a merits review. The Federal Magistrate found that the Tribunal's findings both as to matters of credibility and fact were open to it on the evidence. 12 The alleged breach of s 425 of the Act was rejected. The Federal Magistrate was satisfied that the Tribunal had complied with its statutory obligations. 13 The final particular was treated as a claim of bias, and dismissed. The Federal Magistrate concluded that the appellant had been given a fair opportunity to present his case. There was no evidence of bias. 14 Her Honour therefore could find no jurisdictional error and dismissed the application.

NOTICE OF APPEAL 15 In the Notice of Appeal filed in this Court on 7 December 2007 raises the following grounds: 1. His Honour at the learned Federal Magistrate erred in law, because the Refugee Review Tribunal (the Tribunal) failed to comply with her obligations under s 424A of the Act. Particulars: (a) The Tribunal failed to comply with its obligations under s 424A of the Act even if the Tribunal indeed sent me a letter on 6 November 2006 ("s 424A request letter") after my hearing before the current constituted Tribunal; because of the Tribunal failed to provide me a genuine and good opportunity under s 424A of the Act. (b) The Tribunal only invited me to comment those pieces of information which had been "elected" according to its own "taste" or bias; and I have no doubt whether or not I have been provided a genuine and good opportunity under the s 424A of the Act. 2. His Honour the learned Federal magistrate erred in law, because the Tribunal failed to consider my evidences, properly and fairly. Particulars (a) Before the Tribunal's hearing, I clearly informed the Tribunal in writing with the documentary evidence that: - My lovely wife has committed suicide by jumping down from high building on 18 May 2006! - On 11 may 2004, I was actually released on bail for medical treatment; and I was required to report to the Public Security Bureau ("PSB") once a week; and I was also required to be ready, at any, for accepting further investigation by the PSB. However, I took this chance to escape from my home, and it was quickly discovered by the police after I had been found not to report to the PSB on time. - Since then, the police have continually given trouble to my wife, my parents, or relatives or even some of friends. The police have continually questioned investigated them, including interrogating or questioning them. My wife, as my spouse has become the major target of the police; and during two years period since May 2004, my wife has been interrogated or questioned by the police many and many times. - The reason why the police continually made troubles with my wife and other families is not only because I have been on the black list of the PSB, but also for the reason that the police have never believed that I have already left country. I left China on the passport with the name of "Li Wen Jun" instead of my real name and thus, the police could not find any records showing my departure; and as a result, the police believe that I must still be in China but hiding in some secret places. The police believe that my wife must keep in touch with me in some secret methods; and never stopped giving strong pressure on my wife in order to force my wife to expose some valuable "information" about me - On 17 May 2006, my wife was interrogated by the police for a whole day; and she was subjected to terrible mistreatments; and owing to huge mental pressure, my lovely wife has committed suicide by jumping down from high building on 18 may 2006. - I received the above-mentioned information and Certificate of Death of Inhabitant for my poor wife from a reliable friend. (b) So, my wife has not been simply "harassed" by the Chinese authorities but forced to commit suicide! (c) Obviously, the most important evidence and claim in relation to my application has been misstated by the Presiding Member. I have to doubt whether or nor my application has been considered by her, properly and fairly. 3. In summary, I never ever believe that the Tribunal has assessed my application fairly and carefully. (Transcribed from the original without alteration or amendment)

REASONING 16 The function of the Federal Court in an appeal such as this is to determine whether there was any relevant error made in the decision of the Federal Magistrate and not in the findings of the RRT: Sathiyanathan v MIMA [2000] FCA 210 at [10]; SZAJB v MIMIA [2004] FCA 782 at [4]. The appellant has not sought to identify any error in the decision of the Federal Magistrate. I accept the submission of the first respondent to this effect.

Ground 1 17 Ground one of the Notice of Appeal alleges, without particularisation, that Emmett FM erred in law by finding that the Tribunal complied with the obligations under s 424A of the Act. The Federal Magistrate's approach was correct in finding that there was no breach of s 424A: [39] to [48]. 18 The appellant complained below that the information contained in the s 424A letter sent to him by the Tribunal was selective and should have contained information about certain notes prepared by him. 19 As Emmett FM rightly held, the information regarding the notes was provided by the appellant to the Tribunal on 31 October 2006 and therefore was excluded from the obligations in s 424A(1) by reason of s 424A(3)(b) of the Act. 20 The inconsistencies in the applicant's evidence, in four particular respects, which the Tribunal intimated could be part of its reasons for affirming the decision under review, were set out for the appellant in the s 424A letter and he gave a meaningful written response. 21 The reasons of the Tribunal specifically refer to those inconsistencies identified by it in its s 424A letter as well as the responses provided by the appellant. It is also apparent from those reasons that it was those inconsistencies and the appellant's failure in relation to the appellant's explanations to satisfy the Tribunal as to those inconsistencies which led the Tribunal to conclude that the appellant "lacked credibility and his claims could not be accepted." 22 There was no relevant error on the part of the Federal Magistrate. This ground fails.

Ground 2 23 The second ground of the Notice of Appeal properly understood is to the effect that Emmett FM erred in law by not finding that the Tribunal had failed to consider the appellant's "evidence, properly and fairly." This ground is "particularised" only in the sense that it sets out certain evidence, including evidence of the suicide of the appellant's wife, which he asserts was given in documentary form to the Tribunal. The suicide of his wife was, according to the appellant, the result of repeated interrogations of her by personnel of the Chinese Public Security Bureau. He complained that the Tribunal had wrongly used the expression "harassed" when speaking of his allegations concerning her treatment at the hands of the Public Security Bureau. 24 In oral submissions the appellant said that his wife's death definitely shows that he will be subject to persecution if he returns to China. 25 The claim by the appellant that his wife had committed suicide on 18 May 2006 because she was persecuted by Chinese police was first brought to the attention of the Tribunal in the appellant's letter to the Tribunal dated 22 September 2006. 26 Whilst the Tribunal made no finding one way or the other as to whether the appellant's wife had committed suicide it did positively find that it was not satisfied that she had been harassed by Chinese authorities. Clearly it gave consideration to the appellant's evidence on this question and did not ignore it. 27 On review before the Federal Magistrate where it was contended that the Tribunal failed to consider the appellant's evidence, the Tribunal's adverse finding of fact concerning the alleged harassment of his wife was challenged. 28 The Federal Magistrate, correctly, characterised this as seeking a merits review which was not open [52]: Abebe v Commonwealth of Australia (1999) 162 ALR 1; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]. 29 The position is no different before this Court. 30 This ground amounts to a request for a review of the factual findings made by the Tribunal. This is impermissible: Minister for Immigration and Multicultural Affairs; Ex parte Appellant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1165.

Ground 3 31 The third ground is, in effect, a separate particular of ground two. It asserts that the appellant does not believe that the Tribunal "has ever assessed [his] claim properly and fairly". To the extent that this proposition infers that the Tribunal was biased against the Appellant, it was open to the Federal Magistrate to find that there was no evidence before the Tribunal to support such an allegation. Her Honour was correct to find that there is no evidence of actual bias in this case. Such an allegation must be distinctly made and strictly proven: Minister for Immigration and Multicultural Affairs v Jia Le Geng (2001) 205 CLR 507 at [127]. These requirements have not been met. 32 No error by the Federal Magistrate is shown, and no jurisdictional error by the Tribunal has been demonstrated. 33 The appeal should be dismissed. The appellant should pay the costs of the first respondent. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Solicitor for the Respondent: Greg Johnson DLA Phillips Fox