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[2008] FCA 117
Federal Court of Australia
2008-02-21
Finn J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The present appeal falls within a very narrow compass. The Refugee Review Tribunal rejected the appellant's claim that he feared persecution from local authorities because of knowledge he had about their involvement in corrupt activities. In consequence it rejected his application for a protection visa under the provisions of the Migration Act 1958 (Cth). That decision was unsuccessfully challenged before a Federal Magistrate in judicial review proceedings and it is from his Honour's decision that the present appeal is made. 2 I should note at the outset that the appellant was absent when the appeal was called on. Nonetheless, I decided to proceed under O 52 r 38A(1)(d) with the hearing of the appeal.
BACKGROUND 3 The essence of the claim made before the Tribunal and the basis of its rejection is encapsulated in the following observations of the Tribunal: "While the applicant claims that he will be persecuted by the authorities because of his stand against corruption, that is, because of his political opinion, he has not provided any evidence that he made any protest against government corruption until a bribe made by his company failed to result in profit to the company. His evidence is to the effect that he became involved in a criminally corrupt business deal which did not turn out as he expected, and that either out of anger, or because he sought to make good his company's financial losses, he made threats against local officials whom he had bribed. In the Tribunal's view, the circumstances described by the applicant are criminal in nature. They do not indicate that the applicant (a) had a political opinion hostile to the authorities, or (b) that his actions would have appeared to the authorities to indicate that he held such an opinion. As described by the applicant in his evidence, he was angry that despite having paid the local authorities a bribe to secure a contract, that contract turned out to be unprofitable, and he therefore sought to take revenge and perhaps recoup his losses by threatening the authorities whom he'd bribed. Their action in threatening, questioning and detaining him, was a response to his threat, not an action taken against the applicant for reason of his real or imputed political opinion, but rather a criminal action against a possible threat to their own profit. The Tribunal does not accept that in this case the authorities harmed the applicant, however seriously, for a Convention reason. … The applicant has put forward no other reason for his fear of harm in China than his involvement in corruption in the past." 4 Additionally, the Tribunal indicated that it considered that the appellant was often vague in his responses to questions and that he made claims of serious mistreatment by the authorities only when it had been put to him late in the hearing that he did not appear to have been seriously harmed in the past. The Tribunal did not accept his claims of serious mistreatment were credible. As is apparent from the quotation above, the evidence upon which the Tribunal relied in reaching its conclusion was evidence provided by the appellant to the Tribunal at the Tribunal hearing. 5 It is noteworthy that the Tribunal went on to send a letter to the appellant after the hearing in which it asked him to comment on information he provided at the hearing as it would, subject to his comments, be part of the reason for deciding that he was not entitled to a protection visa. The letter stated (in part): "Your Application for Review The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa. The information is as follows: At your hearing on 22 September 2005, you stated that you feared you would be arrested by the local police in China because you had told them that you would report the corruption of the local government officials to the provincial government. You said at the hearing that you knew that your company, of which you were the head officer, had paid bribes to the local government to gain contracts in the past, but on this occasion the bribe was a large amount of money, and the contract could not be completed within the contract price, which you found frustrating. You said you had asked for additional money to complete the contract, but this had been refused, so you had said you would report the local authorities for corruption. You said at the hearing that you had in fact committed the crime with which the police charged you, because you had been aware that a large sum of money had been paid to the local authorities for corrupt purposes. It was put to you at the hearing that even if your claims of imprisonment and threats by police were accepted as true, any persecution you might be subjected to in China would not be, in the Tribunal's view, for a Convention reason. This information is relevant because: If the harm you fear in China is not done for a Convention reason, the Australian government will not have protection obligations to you because you will not meet the Convention definition of a refugee." 6 The application for judicial review of the Tribunal's decision only advanced one ground of review. Put shortly, this appears to have been an allegation that the Tribunal breached s 424A of the Migration Act in that it did not provide particulars of the information that was the reason, or part of the reason, for affirming the decision. Needless to say the Federal Magistrate had some difficulty in understanding the burden of this ground. His Honour noted correctly both that the determinative issue before the Tribunal was whether the harm that the applicant feared was Convention-based, and that issue arose from the appellant's unsatisfactory evidence at the hearing and was itself the subject of the above letter to the appellant after the hearing. His evidence and his response to that letter (which merely reiterated his claim to have suffered persecution because of his awareness of corrupt activities of the Chinese government) clearly did not constitute information of the type required to be provided to him under s 424A(1) of the Act: see s 424A(3)(b); see also SZICU v Minister for Immigration & Citizenship [2008] FCAFC 1. There clearly was no basis for the allegation of a failure to comply with the requirements of s 424A of the Act and the learned Federal Magistrate so determined. In so doing, his Honour relied unexceptionably on SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [17]-[18]. 7 Because the appellant was unrepresented, the Federal Magistrate dealt with a number of other possible grounds raised by the appellant. An allegation of bias, wholly unsupported by evidence, was rightly rejected, as was a complaint that the Tribunal misunderstood his claims. In essence, the appellant sought merits review by his Honour which was a course not open to be taken, as his Honour properly recognised.
THE PRESENT APPEAL 8 The appeal to this Court has three grounds of review with which I will deal in turn. 9 The first was that the Tribunal "had bias against me and misunderstood my claims". As the learned Federal Magistrate noted in evidence, no evidence was advanced in support of this claim - neither has there been any attempt to advance it before this Court. The ground to this extent is clearly without foundation. Equally, the suggestion that the appellant's claims were misunderstood is without merit. It is the appellant's misfortune that the vices in his claims were only too well understood and, in consequence, were rejected. 10 The second ground impugns the Tribunal's lack of satisfaction of his fear of Convention-based persecution. It is said that conclusion was not supported "with evidence" and "rational and logical foundation". One can only say that there is no substance in this as well. The appellant's claim was undone by his own evidence and there was nothing irrational or illogical in the Tribunal's reasoning to that end. 11 The third ground was that the Tribunal failed to refer to sufficient independent information for the consideration of the appellant's application. The short answer to this is that there was no obligation on the Tribunal to refer to country information in this matter but, in the event, the Tribunal did in fact do so. 12 No error by the Federal Magistrate has been shown and no jurisdictional error by the Tribunal has been demonstrated. 13 The Court will order that the appeal should be dismissed. The respondent Minister has applied for a gross sum order for costs under O 62 r 4(2)(c) of the Federal Court Rules in the sum of $2,500. Doubtless in ignorance of the requirement of Practice Note 27, no affidavit or for that matter any other material has been provided to the Court which would lend justification for an order in that amount. I am not satisfied that the sum specified is an appropriate one in the circumstances. Accordingly I will simply make an order that the appellant pay the first respondent's costs of the appeal. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.
Associate: Dated: 21 February 2008 The appellant did not appear.
Solicitor for the First Respondent: DLA Phillips Fox
Date of Hearing: 20 February 2008
Date of Judgment: 21 February 2008
SZHSX
Minister for Immigration & Citizenship
(2007) 235 ALR 609