SZLJD v Minister for Immigration and Citizenship

THE TRIBUNAL'S DECISION 6 The appellant appeared at a hearing before the Tribunal on 3 July 2007 and gave oral evidence. The Tribunal's 'Decision Record' records that the appellant 'provided no evidence in support of her claims' and '[t]here is no evidence of any foreign Christian (or Human Rights agency) interest in the fate' of the leader and other members of the appellant's church. 7 As I observed in SZLJD v Minister for Immigration and Citizenship [2008] FCA 919, 'the applicant was questioned closely and at length about her travels from China to Hong Kong and from Hong Kong to Australia and the passport and visa that she used. More significantly, the Tribunal member indicated a number of times during the hearing that he intended to make further enquiries about these issues and he identified with some precision what those enquiries might entail' and, as set out further below, these matters were attributed some significance in the Tribunal's findings. 8 In the 'Findings and Reasons' section of the Tribunal's decision, the Tribunal accepted that the appellant is a Chinese citizen and that she came to Australia on a doctored passport. However, it rejected her reasons for using a doctored passport stating such use 'by a PRC national for travel between Hong Kong and a third location could conceivably relate to the visa(s) it contained and not relate to anything else' ie the appellant's claims to fear Convention-related persecution in China. 9 The Tribunal then found that the appellant's claims were 'entirely unsupported' (apart from her claims in relation to a Sydney church) and cited numerous inconsistencies in her account of her actions and their consequences whilst in China. The Tribunal accepted that the appellant had 'some scriptural knowledge consistent with having attended a church for several weeks or months at least' but did not accept a reference provided by her Sydney church as evidence of her practice in China. Taking into account factors such as the appellant's apparent lack of knowledge of Chinese underground churches, and the disjuncture between the asserted extent of her 'secret activities on behalf of the church' and her claim that she was never a 'deep believer', the Tribunal did not accept that the appellant's account of her religious activities was credible. 10 The Tribunal further found the appellant's claims: About her arrest and detention unimpressive, not only because the facts leading to it are found to be so unreliable but also because she made what the Tribunal finds to be inconsistent and implausible claims about how she was released in the circumstances. The [appellant] failed to explain satisfactorily why, after finding propaganda leaflets in her house, the PSB thought it had no strong evidence against her and instead digressed to the claim about [the church leader] paying the bribe. Overall her evidence here was unimpressive. The Tribunal therefore formed an adverse view of the appellant's credibility with respect to her claims and gave no weight to her claimed reason for using the doctored passport. Accordingly, the Tribunal found that the appellant did not hold a well-founded fear of Convention-related persecution in China and it affirmed the delegate's decision.

THE FEDERAL MAGISTRATE'S DECISION 11 The appellant raised six grounds of review in her application for judicial review filed in the Federal Magistrates Court on 25 September 2007. In summary they were that: (1) the Tribunal made its findings based on incorrect information or evidence; (2) The Tribunal based its findings on its own assumptions; (3) The Tribunal based its findings on its ignorance about the official and unofficial churches in China; (4) The Tribunal misstated or distorted the appellant's evidence; (5) The Tribunal failed to comply with ss 424A(1) of the Migration Act 1958 (Cth) ('the Act'); and (6) The Tribunal failed to comply with s425 of the Act. Particulars were also provided. 12 The appellant attended a hearing before the Federal Magistrate on 18 December 2007 and read out the above grounds by way of oral submissions. The Federal Magistrate noted that the appellant had had the opportunity to obtain free legal advice and/or to file further evidence but that she had not filed a transcript nor any other material. The Federal Magistrate considered each allegation in light of the Tribunal's Decision Record but was unable to discern any jurisdictional error. 13 His Honour observed that several of the appellant's arguments essentially disputed the Tribunal's findings of fact, while the grounds relating to s 424A(1) and s 425 of the Act repeated 'a frequently seen precedent, which lacks any particulars making the contentions referrable to the particular matter'. His Honour accordingly dismissed the appellant's application on the basis it did not raise any arguable case for relief.

GROUNDS OF THE PRESENT APPEAL 14 The appellant's application for leave to appeal first came before me on 27 March 2008, at which time I adjourned the matter so that a transcript of the Tribunal's hearing could be provided by counsel for the first respondent. I adjourned the matter again on 17 April 2008 to allow the appellant to read that transcript. I granted leave to appeal on 24 April 2008, essentially on the basis that, having read the transcript, it was not clear that the Tribunal had complied with s 424A(1) and s 424(1) of the Act. I noted at the time that the appellant would need to go on to establish that the Federal Magistrate's error would cause her to suffer some obvious and significant consequences, in order to meet the second leg of the test. 15 The appellant filed an Affidavit in this Court on 8 January 2008 with her Application for leave which sets out her grounds of appeal. On 27 May 2008, I ordered that this document should stand as the appellant's Notice of Appeal. The appellant relies on two grounds: namely, that the Federal Magistrate erred in law and was wrong in finding the Tribunal acted properly in its findings. Six particulars have been provided which essentially repeat the grounds argued before the Federal Magistrate.

THE CONTENTIONS 16 At the hearing of the appeal before me on 19 June 2008, the appellant appeared in person unrepresented but assisted by an interpreter. Mr Marcus appeared for the first respondent. 17 In her oral submissions, the appellant submitted that at the end of the Tribunal hearing, the Tribunal member said that if he had any doubts he would send a letter to her. She submitted that this made her believe that the Tribunal had no questions and accepted all of her answers. She submitted that the Tribunal did not therefore give her an opportunity to respond to any doubts it had as it had promised to do. 18 Further the appellant complained that the Tribunal's treatment of the evidence of her Christian activities in Australia and China was illogical and unfair, and that the Tribunal had ignored the evidence in the letter from the pastor of her Church in Australia dated 26 November 2006. 19 Mr Marcus relied upon the outline of written submissions he had earlier filed. In his written submissions, Mr Marcus submitted that the way in which the Tribunal member questioned the appellant during the hearing as disclosed in the transcript of that hearing, did not disclose conduct affected by jurisdictional error. He submitted that proceedings before the Tribunal are inquisitorial in nature and that the Tribunal is entitled to test the evidence presented by the appellant, and often does so vigorously. On the question of the passport issued to the appellant, Mr Marcus submitted that while the Tribunal clearly had doubts about the appellant's claim made during the hearing (about how she had obtained the passport she used to travel to Australia) the Tribunal ultimately accepted her claims after information was obtained from the Tokyo Embassy. 20 Mr Marcus submitted that a fair reading of the transcript does not disclose any basis for asserting that the appellant was denied a realistic opportunity to present her case at the hearing, in breach of s 425 of the Act. He submitted that there was no basis for suggesting that the review process was incomplete at the conclusion of the hearing and that the present circumstances are distinguishable from those dealt with in NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 ('NAFF'). In this respect, he submitted that the Tribunal member's statement that he would look into the issue and 'get back to' the appellant was followed up with a statement at the conclusion of the hearing to the effect that she ' may hear from [him] in the form of a letter'. 21 Thereafter the Tribunal member obtained documents from the Tokyo Embassy which supported the claims advanced by the appellant as set out in the Tribunal's decision record. Mr Marcus submitted that the information the Tribunal obtained from the Tokyo Embassy was not information the Tribunal considered would be 'the reason or part of the reason for affirming' the decision of the delegate, because it was information that supported the appellant's claims. There was therefore no breach of s 424A of the Act. 22 As to the suggested breach of s 424(1) of the Act, Mr Marcus submitted that the Tribunal referred to the information which it had obtained from the Tokyo Embassy in its reasons for decision and therefore complied with its obligations to consider that information. Furthermore, its consideration of that information led it to conclude that that aspect of the appellant's claim was correct. 23 In his oral submissions, Mr Marcus submitted that the role of this Court was to correct error on the part of the Federal Magistrates Court and not to review the decisions of the Tribunal. He submitted that the Federal Magistrate's decision was made under Order 44 Rule 12 of the Federal Magistrates Court Rules 2001 following a show cause hearing. Mr Marcus submitted that there was no error in the Federal Magistrate's decision that the appellant had no reasonable prospects of success in this appeal. He submitted that none of the grounds of appeal are particularised or supported by submissions. Further he submitted that even if the Tribunal had made an error in relation to its questioning of the appellant about the passport she used to enter Australia, it was not an error that materially affected the Tribunal's ultimate decision. This is so because the Tribunal ultimately rejected the appellant's claims based on its adverse findings in relation to her credibility. Mr Marcus submitted that the decision can be maintained on that ground alone, referring to SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [27] to [29], and [49].

CONSIDERATION 24 The Notice of Appeal filed by the appellant merely alleges that the Federal Magistrate was wrong in finding that the Tribunal had acted properly. It then repeats the grounds of review before the Federal Magistrate. There are at least two problems with the Notice of Appeal. First, no attempt has been made to identify precisely how or where the Federal Magistrate allegedly fell into error. Secondly, to compound the first problem, there is a complete absence of any particulars of the alleged errors on the part of the Tribunal. It is therefore almost impossible to identify the errors (if they exist) that the appellant is concerned about. 25 In her oral submissions, the appellant appeared to give some particulars of her concerns (see above). In summary, they fell into the following two areas: a) The conclusion of the hearing, where the Tribunal left the appellant with the impression that the Tribunal member would contact her by letter if he had any doubts ; and b) The Tribunal's unfair and illogical treatment of the appellant's evidence in relation to her practice of Christianity in China and Australia. 26 In my opinion, the first matter appears to be an allegation of a denial of procedural fairness along the lines identified by the High Court in NAFF and is not made out on the facts. In NAFF the Tribunal clearly indicated to the applicant that it would be writing to the applicant (see [11] and [31]) whereas here, the Tribunal member merely indicated he was going to check with the Australian Embassy in Tokyo about the visa documentation produced by the appellant. He concluded the hearing saying 'Now I am going to close the hearing. You may hear from me in the form of a letter. Then you will have time to respond if you get such a letter'. Unlike in NAFF where there was an unequivocal statement that the Tribunal would be taking further steps in relation to the applicant's application, in this matter the Tribunal indicated that it would be making further enquiries about the appellant's visa and may write to her, obviously depending on the outcome of those enquires. In my view, there was no denial of procedural fairness in this case of the kind identified by the High Court in NAFF. 27 As to the second of the appellant's concerns, the difficulty for the appellant is that the Tribunal did not believe the appellant's evidence about her practice of Christianity in Australia and China because it drew adverse conclusions about her credibility (see [10] above). In my view, it is clear from a fair reading of the Tribunal's decision record that there was a basis articulated by the Tribunal for reaching the adverse credibility conclusions and, while other minds might come to different conclusions about that issue, the assessment of credibility is exclusively a matter for the Tribunal. The appellant has therefore failed to point to any jurisdictional error relative to this concern. 28 As to the alleged breaches of ss 424(1), 424A(1) and 425 of the Act, having read the Tribunal's decision record and now having read the transcript of the hearing before the Tribunal, I agree with Mr Marcus' submissions that no such breach has been established. As to s 424(1) of the Act, it is clear that the Tribunal did obtain further information about the appellant's visa from the Australian Embassy in Tokyo and that it had regard to the information it obtained before coming to the conclusion that the information supported the appellant's claims about the passport and visa she used to leave China and enter Australia. In those circumstances, no breach of s 424(1) has been established. 29 As to s 424A(1), far from being information that was a reasonable part of the reason for affirming the delegate's decision, the information the Tribunal obtained from the Australian Embassy in Tokyo served to corroborate part of the appellant's claim. There was therefore, in my opinion, no obligation on the Tribunal to put this information to the appellant pursuant to s 424A(1) of the Act. Finally, as to the alleged breach of s 425 of the Act, I have dealt with this in relation to my consideration of the first of the concerns raised by the appellant in her oral submissions and for the reasons given above I do not believe any breach of s 425 of the Act has been established. 30 For all these reasons, I am unable to detect any error on the part of the Federal Magistrate in concluding that the appellant's application for review should be dismissed because it had no reasonable prospects of success. It necessarily follows that I have not detected any error on the part of the Tribunal that amounted to jurisdictional error. 31 I will therefore order that this appeal be dismissed. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate: Dated: 24 July 2008 The Appellant appeared in person.

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 27 March 2008, 17 April 2008 and 24 April 2008