SZISC v Minister for Immigration and Citizenship

Federal Court of Australia|2008-02-22|Before: Collier J

REASONS FOR JUDGMENT 1 This is an appeal against the decision of Nicholls FM delivered 17 August 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

Background 2 The appellant is a citizen of the People's Republic of China, who arrived in Australia on 19 June 2004. On 4 November 2005 the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (as it then was). A delegate of the first respondent refused the application for a protection visa on 15 December 2005. On 16 January 2006 the appellant applied to the Tribunal for a review of that decision. 3 The decision of the first Tribunal signed on 27 February 2006 and handed down on 16 March 2006 was set aside by consent by the Federal Magistrates Court on 30 June 2006 and remitted to a second Tribunal, which is the subject of the present appeal. 4 The appellant claimed to have well-founded fear of persecution on the basis of his Christian religion and imputed political opinion. The appellant claimed that in 2002 his uncle was sentenced to two years jail for having a church meeting in his home, and that he lost his job because authorities suspected him of illegal religious activities due to his relationship with his uncle. He claimed that in order to avoid persecution he paid a large sum of money to obtain a passport and tried to leave China. In 2004 police allegedly took documents from his house and he was tortured, beaten and interrogated about members of the church. As a result the appellant bribed authorities to allow him to leave China and he claimed that the police issued a warrant for his arrest in 2005.

Proceedings before the Tribunal 5 On 31 July 2006 the Tribunal sent a letter to the appellant in accordance with s 425A of the Migration Act 1958 (Cth) ("the Act") inviting him to attend the hearing. The appellant sent a response on 14 August 2006 in which he confirmed that he wanted to attend the hearing. 6 On 19 September 2006 the Tribunal sent a letter to the appellant pursuant to s 424A of the Act inviting comment on certain issues by 12 October 2006. On 21 September 2006 the appellant notified the Tribunal by facsimile transmission of his new contact details. On the same day this letter was sent to the appellant's new address, however no response was received from the appellant. 7 The Tribunal noted that the appellant did not attend the hearing, despite having earlier advised that he would attend. In these circumstances the Tribunal decided to proceed to determine the application pursuant to s 426A of the Act. 8 The Tribunal was not satisfied the appellant was a credible witness and gave various findings including: inconsistent, implausible and tailored evidence; delay in attending church in Australia; and delay in applying for a protection visa after arriving in Australia. The Tribunal therefore found the appellant was not a practising Christian, had not been involved in Christianity in China, and had not suffered any harm as a result. The Tribunal was therefore not satisfied the appellant had a well-founded fear of persecution for a Convention reason.

Application for judicial review before the Federal Magistrates Court 9 On 4 December 2006 the appellant filed an application for judicial review of the Tribunal's decision. In his amended application the appellant claimed the Tribunal: · was biased and based its decision on assumption rather than evidence · failed to assess the appellant's claims of persecution should he return to China · failed to consider the appellant's claims based on s 91R of the Act · failed to consider adequate independent country information; and · considered irrelevant information. 10 Prior to addressing the grounds his Honour found that the Tribunal properly applied s 426A of the Act in making its decision without taking further steps to allow the appellant to appear before it (at [16]). His Honour noted that the Tribunal properly sent a s 425A letter, to which the appellant responded. His Honour also noted that the s 425A letter and the s 424A letter complied with the requirements of ss 441A and 441C of the Act. 11 His Honour found that on any reading of the Tribunal's decision there was no merit in the claim that the Tribunal failed to assess the appellant's claims of persecution. The Federal Magistrate also found the Tribunal was not biased, as the appellant gave no evidence in support of this claim and bias was not apparent from the materials before his Honour. Further his Honour found the Tribunal considered the evidence before it, and made credibility findings that were open to it. His Honour noted that the Tribunal did not misunderstand or misapply the test for assessment of persecution, and the decision was based on the Tribunal's rejection of the appellant's factual claims. 12 His Honour found that the decision of the Tribunal was not illogical as claimed in the appellant's original grounds, but was rather based on clear findings and sound reasons. The Federal Magistrate noted that the Tribunal referred to information given by the appellant, so he could not claim that the information was irrelevant. Further, there was nothing in the material to show the Tribunal did not take into account independent country information referred to by the appellant, and there was no requirement for the Tribunal to refer to any further independent country information. 13 His Honour then considered two so-called "typographical errors" in the Tribunal's decision, namely that:

The Tribunal stated that the appellant appeared before the Tribunal, when he did not appear.
The attack on his house was dated as "January or February 2006" when it should have been dated "January or February 2004". 14 His Honour found that as these were typographical errors and did not affect the exercise of its jurisdiction, they did not raise any error of law or jurisdictional error. His Honour therefore could find no jurisdictional error and dismissed the application.

Appeal to this Court 15 By Notice of Appeal filed on 6 September 2007, the appellant raised the following grounds of appeal against the decision of his Honour: "1. The Tribunal failed to assess the chance of my persecution on my return to China because of my membership with underground religious group. 2. The Tribunal's satisfaction that I am not a refugee was not based on a rational and logical foundation for this belief. 3. The Tribunal had bias against me and did not consider my claims according to s 91R of the Migration Act." 16 At the hearing of the appeal before me the appellant was self-represented. He sought to tender new documentary evidence in the form of a letter, photographs, and excerpts from magazines to rebut the findings of the Tribunal concerning his participation in church activities. I explained to the appellant that, in the absence of exceptional circumstances which had not been demonstrated here, I was unable to consider any new evidence, but was limited to considering the decision of the Tribunal on the material before it and whether the decision of the Tribunal was attended by error of law (cf Nejad v Minister for Immigration and Multicultural Affairs [2001] FCA 1399 at [6], MZXFU v Minister for Immigration and Multicultural Affairs [2006] FCA 1593 at [10]). 17 In oral submissions the appellant stated that he was afraid of being persecuted should he return to China, and that he wanted to live in religious freedom. 18 The grounds of appeal essentially reiterate the grounds of appeal which were before his Honour. I have considered his Honour's Reasons for Judgment and am not persuaded that they contain error. In particular I note: · In relation to the first ground of appeal: the Tribunal considered at length the claims of the appellant and the evidence before it, and made factual findings with respect to the credibility of the appellant. The weight given by the Tribunal to evidence before it, both oral evidence and documentary, is a matter for the Tribunal as an incident of its role as the arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. As a general proposition, even a wrong finding of fact does not give rise to jurisdictional error: Abebe v Commonwealth (1999) 197 CLR 510 at [137]. The Court cannot engage in review of the merits of the appellant's claims: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]. · In relation to the second ground of appeal: while it is clear that the satisfaction of the decision-maker must be based on findings or inferences of fact that are supported by some probative material or logical grounds (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [145] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 365-366), as is clear from the decision of the Tribunal in this case there was ample evidence upon which it could make its findings. · In relation to the third ground of appeal: bias is a serious allegation involving personal fault on the part of the decision maker, which must be clearly articulated and proved by admissible evidence: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at 756. In the absence of any evidence as to the conduct of the Tribunal at the hearing or otherwise, no bias should be inferred solely from factual findings that were open on the material before the tribunal: Minister for Immigration & Multicultural & Indigenous Affairs v Jia Legeng (2001) 205 CLR 507 at 519 and 531-532. In this case, no bias on the part of the Tribunal is demonstrated. Further, as was the case before his Honour, the nature of the appellant's complaint in relation to s 91R is not clear. With respect to this complaint I agree with the comments of Nicholls FM at [26] of his Honour's reasons. 19 In my opinion, the approach of the Federal Magistrate and his Honour's conclusions demonstrate no error. 20 The appeal should be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Counsel for the Appellant: The appellant appeared in person

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