SZLSC v Minister for Immigration and Citizenship

Federal Court of Australia|2008-08-15|Before: Middleton J

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of a Federal Magistrate of 1 April 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 30 October 2007. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellants.

BACKGROUND 2 The appellants, a husband and wife, are citizens of the People's Republic of China (PRC) who arrived in Australia on 14 January 2007 (appellant husband) and 2 April 2006 (appellant wife). On 13 February 2007 the appellants lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 22 February 2007. On 23 March 2007 the appellants applied to the Tribunal for a review of that decision. 3 The appellant husband claimed to fear persecution in China due to his organisation of anti-government protests. He claimed to have instigated these protests in Qingchuan County, Sichuan Province in 2006 after the local authorities failed to honour a contract for purchase of plants from his nursery. He was allegedly arrested and tortured by the Public Security Bureau (PSB), interrogated for one week and forced to work on a farm for two weeks. He claimed that he continued petitioning the central government after his release and that he again came to the attention of the PSB as a result.

TRIBUNAL DECISION 4 The Tribunal was satisfied that the appellant husband's identity was as he claimed it to be, even though he had travelled to Australia on a false passport. The Tribunal also accepted that the appellant husband had run a business supplying fruit trees in China. However, the Tribunal found the evidence of the appellant husband and wife inconsistent on the issue of why the appellant husband applied to travel to Australia in September 2006. It did not accept that the appellant husband had travelled to Australia for the purposes of visiting his sick wife. 5 The Tribunal noted that the appellant wife was not aware of the appellant husband's claimed involvement in anti-government protest activities in Sichuan province. It found this difficult to accept considering that this matter was central to the appellants' claimed fear of persecution. It did not accept that this was attributable to the appellant wife's poor education. This claim was otherwise supported only by the appellant husband's testimony, and in these circumstances the Tribunal did not accept that the appellant husband had staged a sit-in protest in Sichuan as claimed. 6 The Tribunal similarly dismissed the appellant husband's claims to have petitioned the central government and to have again come to the adverse attention of the PSB as the appellant husband provided the only source of information in relation to these claims, and the appellant wife did not appear aware of the claimed facts. The Tribunal found that the appellants had not experienced any harm in China and were not of interest to the PSB. The Tribunal was accordingly not satisfied that the appellants held a well-founded fear of Convention-related persecution in China.

THE COURT BELOW 7 Before the Federal Magistrate the appellants claimedthat the Tribunal failed to consider important evidence. The appellant husband also disputed the Tribunal's assessment of the appellant wife's evidence, asserted that the Tribunal dismissed his claims without evidence, and reiterated some of his factual claims. In oral submissions, the appellant husband also raised an allegation of bias. 8 The Federal Magistrate, in considering the Tribunal's decision in light of the claims made by the appellants, dismissed the application for judicial review. Her Honour could find no evidence that the Tribunal was so committed to a conclusion already formed concerning the appellants' claims that it would have been incapable of altering its view. 9 In respect of the complaint that the Tribunal, in accepting the appellant husband's identity as claimed, failed to have regard to his evidence about why he entered Australia on a passport not in his name, her Honour held that the Tribunal referred to this information in its s 424A letter and that a fair reading of the Tribunal's reasons made it clear that the Tribunal found that the appellant husband was not of interest to the authorities in China. 10 In respect of the argument that it was unfair for the Tribunal to give weight to the appellant wife's evidence when she had not been present in China during the period in which the claimed persecution had occurred, her Honour held that the Tribunal correctly considered the appellant wife's evidence, informed the appellants of its concerns about her evidence, and then considered their responses. Her Honour also found that the assertion that the Tribunal did not fairly and carefully consider all the evidence was not supported by the material before the court. Finally, her Honour noted that the other grounds raised by the appellants merely attempted to seek merits review, which was not the function of the court.

PRESENT APPEAL 11 The notice of appeal raised the following grounds: 1. The Federal Magistrate erred in law. 2. The Federal Magistrate was wrong in finding that the Tribunal acted properly in its findings. Particulars 1. The Federal Magistrate erred in not finding that the Tribunal failed to consider the appellants' response to the s 424A letter properly and fairly. 2. The Federal Magistrate erred in not finding that the Tribunal failed to consider the appellants' claims properly and fairly. It is because the appellant husband had been of adverse interest to the PRC authorities that he had to depart China on a false passport. 3. The Federal Magistrate erred in finding that the Tribunal had assessed the appellant husband's credibility properly and fairly. 4. The Federal Magistrate erred in finding that the Tribunal had assessed the appellant wife's credibility properly and fairly. 5. The Federal Magistrate erred in finding that the appellants' contentions sought merely to dispute the Tribunal's findings of fact. The Tribunal failed to bring an impartial mind to the appellants' claims. 12 By way of introduction I make the following comments. 13 The appellant husband before me in oral submissions raised issues which effectively sought a merits review of the decision of the Tribunal. The issues concerning the appellant wife's knowledge and the explanation for coming to Australia on another person's passport were considered by the Tribunal. The Tribunal made findings on these issues which were open to it. As to the attitude or knowledge of the Australian Consul-General concerning the appellant husband and his successful business activities in China, another issue mentioned in oral submissions, this does not appear to have been raised either before the Tribunal or Federal Magistrate. In any event this matter does not in my view impact upon the central findings of the Tribunal concerning the claims made by the appellants. 14 The Tribunal undertook a proper, genuine and realistic consideration of the appellants' claims. All of the appellants' claims and evidence were considered by the Tribunal before it reached its decision and the conclusions made were open to the Tribunal on the evidence before it. There is no evidence in the decision of the Tribunal of any critical flaws in its reasoning process. 15 The Tribunal's findings of fact were open for the reasons it gave. The Court cannot review the merits of the Tribunal's decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137]. 16 The mere fact that an appellant disagrees with the Tribunal's factual conclusions and the Tribunal's ultimate conclusion does not mean that there is an error of law. 17 The Tribunal found the evidence presented by the appellants to be contradictory and inconsistent. The Tribunal was not satisfied by the explanations and evidence presented by the appellant husband. The Tribunal noted that after considering the appellants' claims independently and cumulatively it could not be satisfied that the appellant husband had suffered any of the harm claimed. 18 The Tribunal's finding that the appellant husband was not a credible witness was a finding of fact, not open to review by the Court. The making of findings of credibility is within the jurisdiction of the Tribunal and not within the jurisdiction of the Court: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167. 19 I now turn specifically to the notice of appeal which contains two grounds of appeal and various particulars. It is appropriate to address the particulars. 20 First, it is alleged that the Federal Magistrate erred in rejecting the appellant husband's claim that the Tribunal ignored his explanation as to why he came to Australia on another person's passport (containing an Australian visa). The Tribunal's reasons do not indicate that the Tribunal was unaware of the appellant husband's explanation, as opposed to not accepting it. As the Tribunal found the appellant husband was not of interest to the PSB authorities, implicitly it did not accept that this was the reason he had to use another person's passport as he claimed. The fact that the Tribunal accepted that the appellant husband did in fact use another person's passport did not require it to accept his explanation for this, especially as the appellant husband claimed he had previously been refused a visitor visa to Australia before his claimed problems occurred. This the Tribunal appears to have accepted, although it did not accept his claim that the purpose of the visa was to visit his sick wife. This particular is not sustained. 21 The remaining particulars (other than the contention regarding failing to bring an impartial mind to the appellants' claims) essentially assert error in the Federal Magistrate's acceptance that the Tribunal's findings were open to it. The appellants do not identify how these conclusions by the Federal Magistrate were wrong, other than by an expression of disagreement with the Tribunal's factual findings. This provides no basis to allow the appeal. 22 As to the allegation of bias, to demonstrate bias involving prejudgement, the appellants must show the decision-maker had a closed mind to the issues raised and was not open to persuasion by the appellants' case. The question to be asked is whether by their mental state the decision-maker was disabled or unwilling to have regard to other relevant circumstances. The onus to demonstrate bias lies on the appellants and it is a heavy onus: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507. 23 Apprehended bias will be made out where a hypothetical fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425. 24 The Federal Magistrate found no evidence that suggested that the Tribunal prejudged the appellants, finding that the Tribunal approached its task with a mind open to persuasion. 25 The Tribunal appears to have given full consideration to the appellants and all of their evidence and raised with the appellant husband each of the matters that led to the decision. There is no substance to suggest that the Tribunal did not bring an open, independent mind to the decision. A fair-minded lay observer or a properly informed observer would not reasonably believe that the decision-maker did not bring an open mind.

Conclusion 26 In my opinion, the approach of the Federal Magistrate and her Honour's conclusions were correct. 27 The appeal should be dismissed. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Associate: Dated: 20 August 2008 Counsel for the Appellants: Appellant appeared in person

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