SZKOW v Minister for Immigration and Citizenship

Federal Court of Australia|2007-11-29|Before: Cowdroy J

REASONS FOR JUDGMENT 1 The appellant appeals from the decision of Federal Magistrate Scarlett dated 17 June 2007 which affirmed the decision of the Refugee Review Tribunal ('the Tribunal') handed down on 3 April 2007. The Tribunal had upheld a decision of a delegate of the extant Minster for Immigration and Multicultural Affairs ('the Minister') to refuse to grant a protection visa to the appellant.

BACKGROUND 2 The appellant is a citizen of the People's Republic of China ('the PRC') who arrived in Australia on 19 September 2006. On 20 September 2006 the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. The Minister refused the application for a protection visa on 18 December 2006. On 29 December 2006 the appellant applied to the Tribunal for a review of that decision. 3 The appellant claimed that she feared persecution in the PRC because she was a Falun Gong practitioner. The appellant said that she had been introduced to Falun Gong by her husband and that she and her husband were detained in May 2005. The appellant claimed she paid a large sum to secure her release, and that she departed the PRC for Chile. The appellant said that she could not obtain protection there, so she came to Australia.

TRIBUNAL'S DECISION 4 The Tribunal found elements of the appellant's evidence to be implausible, lacking in detail, and inconsistent with independent country information. The Tribunal found that the appellant could not explain Falun Gong nor provide a reason for her claimed adoption of such practice in 2005. It did not accept that she tried to recruit new members at her restaurant; that she was detained nor that she tried to apply for refugee status in Chile. The Tribunal noted that the appellant had not practised Falun Gong in Australia. 5 The Tribunal considered the claim that the appellant lost her passport, and stated that in light of its credibility findings it was not prepared to accept that the appellant did not have the passport in her possession. The Tribunal found that it was possible that the passport contained evidence such as a right to reside in a third country, which she may not have wished the Tribunal to consider. The Tribunal did not accept the appellant as a credible witness and was accordingly not satisfied that the appellant was a person to whom Australia owed protection obligations.

APPEAL TO FEDERAL MAGISTRATES COURT 6 By application filed on 3 May 2007 the appellant applied for review of the Tribunal's decision on several grounds. She alleged that the Tribunal was biased; that the decision of the Tribunal was not based on evidence or other material; that the Tribunal failed to refer to relevant independent information and breached s 424A of the Migration Act 1958 (Cth) ('the Act'). By Amended Application filed on 29 June 2007 the appellant claimed that the Tribunal relied on irrelevant independent information, and failed to comply with s 424A of the Act. In oral submissions the appellant also relied upon grounds in the originating application. 7 Scarlett FM found no merit in any of the appellant's grounds and dismissed the appeal.

APPEAL TO THIS COURT 8 By Notice of Appeal filed on 6 August 2007 the appellant appealed to this Court from the decision of Scarlett FM. The appellant reasserts the grounds raised in the Court below, namely that the Tribunal was biased; the Tribunal 'did not get together independent information relevant to my application'; the Tribunal did not invite the appellant to comment upon the information before refusing her protection visa; and that the Tribunal did not comply with s 424A of the Act.

FINDINGS 9 The appellant appeared at the hearing assisted by a Mandarin interpreter. It was apparent that she had little understanding of the grounds of appeal upon which she relied. 10 The decision of Scarlett FM records that in response to his Honour's question seeking particulars of the appellant's ground of appeal alleging bias, the appellant claimed that the Tribunal was biased because the Tribunal found against her. Before this Court the appellant provided no particulars of her claim of bias. 11 Scarlett FM observed that there was no evidence of bias, and referred to decisions of the Full Court in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [44] and SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 each of which referred to the requirement that bias must be clearly alleged and proved. In the absence of details of such claim, the Court rejects such ground of appeal. 12 As to the claim that there was no evidence to support the Tribunal's finding, Scarlett FM's decision records that he invited the appellant to explain her claim that the Tribunal's decision was based upon an absence of evidence. The appellant responded that it was necessary for the Tribunal to provide evidence to disprove her claim. His Honour found that the appellant's claim was misconceived and observed that it is for an applicant to satisfy the Minister, or the Tribunal, that the criteria in s 65 of the Act is satisfied. His Honour's conclusion was correct. In Abebe v Commonwealth (1999) 197 CLR 510 at 576 at [187], Gummow and Hayne JJ said: It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.

13 As to the appellant's claim that there was a failure by the Tribunal to refer to relevant independent information and that the Tribunal relied upon irrelevant independent country information, no particulars have been provided of either claim. Scarlett FM observed that it was well established that the relevance or otherwise of independent country information, and the weight to be provided to it, were matters solely for the Tribunal. His Honour's decision accords with authority: see NAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]-[11]; NBKT v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 156 FCR 419 at [84]; Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1 per Gleeson CJ at [8]. The Court is satisfied that no failure as alleged has been established. 14 The appellant claims that there has been a breach of s 424A of the Act because the Tribunal should have provided an invitation to comment upon the independent information upon which the Tribunal proposed to rely. Scarlett FM rejected such allegation since independent country information falls within the exception to s 424A(3)(a) of the Act and accordingly the Tribunal has no obligation to make any such disclosure. The authority supporting his Honour's conclusion is contained in Minister for Immigration and Multicultural and Indigenous Affairs v NAMW and Others (2004) 140 FCR 572 at [138]. 15 The appellant also claimed that the Tribunal breached s 424A because it failed to provide her an invitation to comment on information that formed part of its reasons for affirming the Minister's decision. However the principal reason for the Tribunal's decision was the fact that it found her evidence to be implausible. Such finding is a subjective appraisal and the Tribunal's thought processes are not the subject of any obligation under s 424A of the Act: see SZBYR v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 235 ALR 609 at [18]. Further the Tribunal is not required to set out every detail of its process of reasoning leading to its decision: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 77 ALJR 1909 at [54].

CONCLUSION 16 It follows that the appeal must be dismissed. 17 The Minister has sought an order for costs fixed in the sum of $3500. Since this is within a reasonable range, the Court will make such order. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Counsel for the Appellant: The appellant appeared in person

Solicitor for the Respondent: Australian Government Solicitor

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