SZKNB v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 On 20 May 2008, I dismissed an appeal from a judgment of Nicholls FM in SZKNB v Minister for Immigration & Citizenship [2007] FMCA 2012. 2 Nicholls FM, on 10 December 2007, dismissed an application to review a decision of the Refugee Review Tribunal (the Tribunal), which had been signed on 22 March 2007 and handed down on 23 March 2007, affirming a decision of a delegate of the first respondent to refuse to grant the applicant a protection visa. 3 I ordered that the appeal be dismissed; the appellant pay the respondents' costs to be taxed, if not agreed, and I indicated that I would deliver reasons for the making of those orders at a later date. These are those reasons. 4 The appellant, a citizen of the People's Republic of China (China), arrived in Australia on 17 January 1998 and applied for a protection visa on 18 August 1998. This application was refused by a delegate of the Minister, the first respondent, on 15 October 1998. That decision was affirmed by the Tribunal on 19 May 1999, the decision being handed down on 20 May 1999. 5 It appears that the appellant remained in Australia until his detention in 2006, and the Minister, on 13 December 2006, exercised his power to allow the appellant to make a second application for a protection visa pursuant to s 48B of the Migration Act 1958 (Cth) (the Act). 6 The appellant applied for a protection visa on 18 December 2006, which was refused by a delegate of the Minister on 8 January 2007. The appellant applied to the Tribunal for review on 11 January 2007. The Tribunal conducted a hearing on 2 March 2007, and, on 6 March 2007, wrote to the appellant pursuant to s 424A of the Act. 7 The Tribunal rejected the appellant's claims to fear persecution for reason of his Christian religion or breach of family planning laws in China. 8 Nicholls FM summarised the Tribunal's findings, at [4] of his Honour's judgment: The Tribunal found: 1) The applicant's delay in making his first application for a protection visa raised serious doubts about the genuineness of his fear of persecution. 2) The significant delay in seeking judicial review of the Tribunal's earlier decision of 19 May 1999, and his remaining in Australia unlawfully, raised further doubts about the genuineness of his fear of persecution as well as the applicant's credibility. 3) The inconsistency between the applicant's claims as to when he and his brother established their church, the inconsistencies in the applicant's evidence in this regard, and that his explanations for this inconsistency were not persuasive, raised further doubts about his claims and his credibility generally. 4) There was significant delay in the applicant providing documents in support of his claims. It found his explanations for this unconvincing, and that this also raised serious doubts about the veracity of his claims and his credibility generally. 5) While the Tribunal accepted that the applicant had been baptised in November 2006, it found that this was done for the purposes of enhancing his application for a protection visa and disregarded that activity pursuant to s.91R(3) of the Act. It further considered that the delay in baptism raised serious doubts about his claims and his credibility. 6) The Tribunal found in light of its concerns about the applicant's credibility that the applicant had fabricated his claims to support the application for a protection visa, and rejected his claim to have come from a Catholic family and to have been dedicated to Christianity, or to have been a member of an underground Catholic Church, or that he had ever been in difficulty with authorities as a result. 7) The Tribunal rejected the claim that if the applicant were to return to China he would continue to be involved in any Christian-related activities, and found that there was not a real chance that he would be persecuted in China on the basis of religion and/or religious activities. 8) The Tribunal rejected the applicant's claim that his family had been ill-treated during the Cultural Revolution given its credibility concerns with the applicant. 9) Again for adverse credibility reasons it did not accept his claim that his wife was forced to undergo termination of a pregnancy under China's family planning laws. 10) In the alternative, it found that in any event, that the "one child policy" (law enacting this policy) was a law of general application, and that harm consequential to that policy alone did not amount to the applicant becoming a refugee. 11) In all therefore, the Tribunal did not accept that the applicant had suffered any Convention related harm, nor did it accept that there was a real chance of Convention related harm befalling the applicant if he were to return to China in the reasonably foreseeable future. On this basis, the Tribunal found the applicant did not have a well-founded fear of Convention related persecution, and affirmed the decision under review. (Federal Magistrate's Court Book references omitted). 9 At the hearing in the Federal Magistrates Court for review of the decision of the Tribunal, the applicant was represented by Mr J Gormly of Counsel, and the Minister was represented by Mr T Reilly of Counsel. Counsel for the appellant was granted leave to file an amended application, in which the appellant claimed that the Tribunal did not comply with s 424A of the Act as the letter sent to the applicant by the Tribunal pursuant to that section was sent after the Tribunal hearing. 10 It was contended for the appellant, on the basis of the remarks made in SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609; [2007] HCA 26 (SZBYR) at [17]-[19], that s 424A required a letter to be sent prior to any Tribunal hearing. 11 Nicholls FM dismissed this argument for two reasons. First, his Honour held that s 424A was not to be so construed, holding that SZBYR had not overturned comments in SAAP v Minister for Immigration & Multicultural Affairs (2005) 228 CLR 294;[2005] HCA 24 (SAAP) indicating that s 424A could be complied with after the Tribunal hearing. Secondly, his Honour accepted the submission on behalf of the Minister that s 424A(1) was not engaged by any material relied on by the appellant, given what was said about the meaning of "information" in SZBYR, at [17]-[18]. 12 The Notice of Appeal to this Court repeats the claim that was argued unsuccessfully before Nicholls FM. The Notice of Appeal does not indicate in what respect it was contended that his Honour's decision was wrong. 13 The Grounds of Appeal alleged that the Federal Magistrate erred in considering only whether the Tribunal's subjective appraisal of the material was "information", and considering not the material itself. This ground fails because it is apparent that the Federal Magistrate did consider the material itself. 14 The High Court in SZBYR at [18] endorsed what was said by the Full Federal Court in VAF v Minister of Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 476-477 per Finn and Stone JJ that the word "information": … does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc. 15 In my judgment, the appellant has not shown that there was "information" in the relevant sense, as explained above, that was not given to the appellant in the Tribunal's s 424A letter. 16 On the assumption which is contrary to that conclusion, the Notice of Appeal asserts non-compliance with s 424A, claiming that that section requires compliance with it prior to the hearing. 17 Ground 4 of the Notice of Appeal to this Court provides: 4. His Honour erred in finding that s 424A imposed no obligation on the Tribunal to give notice of any "information" prior to a hearing. 18 Subsequent to the decision by Nicholls FM, a Full Court of the Federal Court has confirmed that s 424A is not limited to compliance before a Tribunal hearing: SZKLG v MIAC (2007) 164 FCR 578; [2007]FCAFC 198 at [34]-[36]. The point rejected by the Full Court in that case was argued by the same counsel who appeared for the appellant before Nicholls FM. 19 It follows that Ground 4 must fail. 20 It is for these reasons that, on 20 May 2008, I made the orders dismissing the appeal and ordering the appellant pay the respondents' costs to be taxed, if not agreed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.