SZJEH v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 This is an appeal, from a decision of Emmett FM delivered on 11 July 2007. Her Honour dismissed an application for review of a decision of the Refugee Review Tribunal dated 8 February 2007, affirming a decision of a delegate refusing to grant the appellant a protection visa. 2 The background can be stated shortly. The appellant is a citizen of China who arrived in Australia on 18 February 1999. A delegate of the Minister refused to grant the appellant a protection visa on 15 March 1999. That decision was affirmed by a decision of the RRT on 24 August 1999. An application for review was then taken to the Federal Magistrates Court. 3 There was some delay in the matter being dealt with in the Federal Magistrates Court. Apparently, this was because of some administrative difficulties. However, on 8 November 2006, the matter was remitted by consent to the RRT and was dealt with in a second hearing. 4 The appellant attended that hearing on 22 January 2007. The review was conducted by a differently constituted Tribunal from that which heard the first application for review. The Tribunal's decision was dated 8 February 2007 and was handed down on 13 February 2007. 5 The decision of the RRT on the second application is fully explained in the reasons for judgment of Emmett FM commencing at [14]. The appellant claimed to have a well founded fear of persecution in China on political grounds by reason of underground union activities which he said he had carried out since 1993. The Tribunal set out the appellant's statement lodged on 12 April 1999 in which his claims were fully stated. 6 The RRT was concerned at the second hearing that the appellant had given different evidence in support of his application to the earlier constituted RRT. There were differences between the claims which he made on the first occasion and the claims which he had made in support of his protection visa application. 7 The RRT wrote to the appellant seeking further information under s 424 of the Migration Act 1958 (Cth). The RRT also sent him a letter dated 22 December 2006 purporting to comply with s 424A(1) of the Act. That letter invited comments about the inconsistencies between the appellant's application for a protection visa and his evidence to the earlier constituted Tribunal. 8 The Tribunal was concerned, in particular, that the appellant claimed at the second hearing, that is to say, on 22 January 2007, that he had a girlfriend who he had sought to break up with in July 1999 and he offered this as a reason why he was unable to present his case satisfactorily to the earlier constituted Tribunal in 1999. In its reasons handed down in February 2007, the RRT rejected the appellant's claim to have had a girlfriend because he had made no prior reference to this. 9 The Tribunal was also concerned about the appellant's claim to have had a son with his girlfriend and to have sent the son back to China. The Tribunal found that the appellant manufactured his claim that the named woman was his girlfriend while he was in China and that he did so in a desire to enhance his claims for refugee status. 10 The Tribunal also found that the appellant's claim that his relationship had broken down, and that this negatively affected his ability to give cogent evidence at the first Tribunal hearing, was false. 11 The Tribunal also found the appellant's claims regarding his son being a child born in contravention of the one child policy to have no substance. The Tribunal rejected that claim. 12 The Tribunal found that the appellant was not a credible witness and therefore rejected all of his claims. 13 In his application for review before Emmett FM, the appellant put forward three grounds which are set out in [33] of Emmett FM's reasons. The first ground was that the Tribunal failed to consider his evidence "properly and fairly". The second and third grounds alleged a failure of the Tribunal to comply with s 424A of the Act. 14 Federal Magistrate Emmett said at [35] that it was clear from the Tribunal's reasons that it considered very carefully the appellant's claims. Her Honour observed, at [31], that disagreement with findings of fact made by a Tribunal does not support a contention that the Tribunal failed to consider the evidence properly or fairly. Her Honour also rejected the claims that the Tribunal had failed to comply with s 424A(1) of the Act. 15 Her Honour's reasons may be summed up in what she said at [51] which I will reproduce as follows: "A fair reading of the Tribunal's decision makes it clear that the Tribunal considered the evidence and material before it, identified the Applicant's claims, set out findings that were open to it on the evidence and material before it on material questions of fact and the reasons for those findings. It complied with its statutory obligations in the making of its decision, including the conduct of its review." 16 The notice of appeal repeats the contentions which were made by the appellant in his application for review. He appeared before me this morning without legal representation and addressed me on the matters raised in the notice of appeal. The appellant made six points. I will not deal with each of them separately but will refer briefly to what he said about each of the matters raised in the notice of appeal. 17 First, the proposition that the RRT did not give careful consideration to the appellant's claims must be rejected. No error has been demonstrated in the finding made by Emmett FM that the Tribunal carefully considered all of the claims. The substance of the appellant's argument seems to be that the Tribunal did not have a satisfactory basis for making adverse findings of credibility against him. However, it is well established that findings of credit are a matter for the Tribunal and absent some error going to the jurisdiction of the Tribunal, the decision of the Tribunal is not open to judicial review. 18 The two items of information which the appellant put forward as items which fell within s 424A(1) of the Act are set out in the notice of appeal. The first is that there was no evidence at the second tribunal hearing that the appellant's partner actually attended the first hearing. The second is that the appellant did not know the name of the person who accompanied his child when the child returned to China. 19 There is no error in the finding of Emmett FM that insofar as the appellant put forward these items in support of his case, they were not "information" which enlivened the obligations of s 424A(1) of the Act. This is clearly established by the observations made by Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 206 ALR 471 at [24]. Their Honours' reasons were referred to with approval by the High Court in SZBYR v Minister for Immigration & Citizenship [2007] 235 ALR 609 at [18]. See also Minister for Immigration & Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 at [70]-[73]. 20 I take into account the fact that the appellant is not legally represented. Section 424A is a difficult section but the construction of that section by the courts makes it plain that the Tribunal's subjective appraisals or thought processes are not information within the section and that the section does not extend to gaps, defects or lack of detail or specificity in the evidence. That is why the item of information put forward by the appellant did not enliven the obligations of the Tribunal under s 424A(1). 21 The last point made by the appellant was that he was invited to two Tribunal hearings to give evidence. He said this must indicate that he is a genuine refugee. However, that is not so. The circumstances within which the Tribunal must invite an applicant to appear before it are set out in s 425 of the Act. Plainly, the mere fact of an invitation does not indicate refugee status. 22 It follows from what I have said that the appeal must be dismissed. 23 The orders of the court will be that the appeal be dismissed and that the appellant pay the costs of the first respondent of the appeal. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.