SZNBV v Minister for Immigration and Citizenship

Eligibility criteria 6 Fear of persecution is insufficient to secure a protection visa. To qualify the appellant had to satisfy s 36(2) of the Migration Act 1958 (the Act). In short, he had to prove to the Minister's satisfaction that he was a non-citizen to whom Australia owed protection obligations under the Refugees Convention as amended by the Refugees Protocol. This meant that he had to show that he has a well-founded fear of being persecuted in China for reasons of race, religion, nationality, membership of a particular social group or political opinion. But he had a further hurdle to overcome. Section 91R of the Act requires, in effect, that an applicant for a protection visa also has to prove that the reason(s) is or are the essential and significant reason(s) for the persecution, the persecution involves serious harm to him or her and is also systematic and discriminatory conduct. A non-exhaustive definition of "serious harm" appears in s 91R(2) of the Act. 7 A fear is "well-founded" when there is a real substantial basis for it: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 572.

The Tribunal's decision 8 After closely examining the appellant's passport, the Tribunal noted that there were a number of inconsistencies between the claims the appellant was making and the stamps in the passport. They were significant. Contrary to the appellant's claims, the stamps indicated he had left China more than once and had spent significant time in Singapore. Although the appellant acknowledged the passport was his, he claimed that he did not know anything about the various stamps in his passport, that he had given it to someone else to use (the same person who had helped him to obtain visas), who had arranged for the stamps to be placed in his passport. The Tribunal put these matters to the appellant at the hearing, but ultimately did not accept his explanations and concluded that he had been untruthful. 9 The Tribunal also referred to country information which indicated that people who were granted passports and exit permits to leave China were assumed not to be on any wanted list if they returned to China. 10 Further, the Tribunal was independently satisfied that the appellant was not a Falun Gong practitioner either here or in China. It considered that the appellant's claims and knowledge of Falun Gong were very general and showed no real knowledge or commitment to its teachings. The Tribunal was troubled by the fact that the appellant had described Falun Gong in his visa application as his religion when the official website of the organisation characterised it as non-religious. When confronted with the Tribunal's concerns, the appellant appears to have resiled from what he had put in his application and claimed that it was "just an organisation with exercises and teaching." 11 The Tribunal considered whether there was an alternative basis for the appellant's claim but was not satisfied he had a well-founded fear of persecution based on his membership of a particular social group, which it identified as "being a truck driver in China who is subject to fines or bribery". The Tribunal was not persuaded that there was a relevant Convention connection with the reason why he was asked to pay bribes (that is, if he were to overload his truck). Nor was the Tribunal satisfied that the appellant had a well-founded fear of persecution for reasons of his real or imputed political opinion, since there was nothing to indicate that he had ever been involved in anti-Government political activities whilst in China. 12 The Tribunal concluded that there was not a real chance that the appellant would be subject to serious harm amounting to persecution for a Convention reason if he were to return to China, either now or in the foreseeable future, and affirmed the decision under review.

Federal Magistrates Court 13 By application filed in the Federal Magistrates Court of Australia on 18 December 2008 the appellant sought judicial review of the Tribunal's decision. 14 The appellant's grounds of appeal were expressed as follows (without alteration): (1) I started practice of Falun Gong in 2005. on 6 April 2008 when I distributed Falun Gong fliers, I was arrested for 20 days. I suffered various physical torture. I had to sell my ruck for my release. I had to pay money to buy passport to leave China. The passport previously used by other people, so I don't know about the details of the ecords of deparyture and entrance. All of the above facts I experienced was not accepted by the delegate of the Refugee Review Tribunal. I think that the delegate failed to consider my claims according to S91R of the Migration Act of 1958 because of the delegate's bias against me. 15 Section 474 of the Act severely limits the Federal Magistrate's jurisdiction. The only question for him was whether the decision of the Tribunal was affected by jurisdictional error. See Plaintiff S157 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476. 16 Lloyd-Jones FM, who heard the application, found no evidence of actual bias, no grounds for suspecting a reasonable apprehension of bias and no foundation for any argument to the effect that the Tribunal's decision was illogical or irrational. His Honour felt that this was merely an attempt at merits review, noted that it was unavailable, and, in the absence of jurisdictional error, dismissed the application.

Appeal to this Court 17 On 5 January 2010 the appellant filed in this Court a notice of appeal from the decision of the Federal Magistrate. The grounds of appeal were particularised as follows (without alteration): (1) I started practice of Falun Gong in 2005. On 6 April 2008 when I distributed Falun Gong fliers, I was arrested for 20 days. I suffered various physical torture. I have to sell my truck for my release. I had to pay money to buy passport to leave China. The passport was used by other people, so I don't know the details of the records of department and entrance. All the facts I experience was not accepted by the member of the Refugee Review Tribunal. The Tribunal member failed to take all my claims into account according to S91R of the Migration Act 1958 because of the Tribunal member's bias against me. (2) The Federal Magistrate Lloyd-Jones FM didn't point the Tribunal member's jurisdictional errors.

Appellant's submissions 18 When invited to tell the Court what he had to say in support of the appeal, the appellant made the following plea through an interpreter: I hope your Honour could remit my case back to RRT so that I could have another hearing chance. I have a lot of evidence. Because before, I wasn't familiar with the situation here, I didn't submit those evidence. I didn't have the chance to submit further evidence. I didn't have money to hire a proper lawyer before. So please, your Honour, please send my case back to RRT, so that I can have a chance to submit more evidence to RRT. That's all. 19 Only on specific questioning, did he deal with the grounds of appeal which, he explained, had been drafted (unsurprisingly) by someone else. He maintained that the Tribunal was biased, but could not say why. He noted that the member said he did not meet the Convention requirement, but said he could not remember if the member said he did not believe him. He said he thought the member was not fair and insisted that everything he said was true. When asked why he felt the member was unfair he said: The member asked me questions. I answered questions. The member questioned me too much about Falun Gong. I couldn't remember those details. 20 He was unable to shed any light on ground 2 of the notice of appeal. 21 He said there was much talk in the interview with the Departmental officer and at the Tribunal about discrepancies between what he had said and what was in the passport. He protested that he could not read English and did not even know why his application had been rejected as he could not read the Tribunal's decision and the person who had helped him with the notice of appeal did not tell him any details, only that the Tribunal did not believe him (contrast [19] above). He insisted he told the truth but, because what he said was different from what was in the passport, he was not accepted. He claimed his airline ticket would have shown something different from what was in the passport but he had lost it.

Consideration 22 The appellant had ample opportunity to present evidence to the Tribunal. The Tribunal wrote to him on 15 September 2008 advising him, amongst other things, to immediately send us any documents, information or other evidence you want the Tribunal to consider. Any documents not in English should be translated by a qualified translator. 23 On 1 October 2008 it wrote again to him inviting him to appear before the Tribunal and enclosed with that letter a leaflet in which the following question and answer appeared: SHOULD I SEND THE TRIBUNAL MORE INFORMATION BEFORE THE HEARING? You should provide the Tribunal with any evidence you now have which will support your claim to be a refugee under the United Nations Refugees Convention as soon as possible and in any case at least a week before the hearing date…. 24 Whilst the appellant may not have known what to expect when he appeared before the Minister's delegate, the issues the delegate raised with him would have put him on notice of the problems he was likely to face in the Tribunal. 25 In any event, the appellant informed the Court that he does not have the evidence he seeks to present to the Tribunal on a reconsideration, although he seems to think that it is available. 26 This was an issue not apparently raised before the Federal Magistrate but, in any event, provides no basis for any arguable ground of review. It was in the nature of a lament and this Court has no power to act upon it unless the Federal Magistrate fell into error. 27 There is nothing in the Federal Magistrate's reasons that reveals any error. The Tribunal was entitled to reach the conclusion it did on the material available to it. 28 As the Federal Magistrate found and as the appellant's inability to articulate the reason for it clearly demonstrated, there is no substance in the allegation of (actual) bias. His Honour correctly summarised the law and his conclusion is unassailable. 29 His Honour was also correct to find no ostensible bias, that is, that a fair-minded and informed lay person might reasonably apprehend that the Tribunal might not bring or have brought an impartial mind to bear on the decision: see NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 (NADH) at [14] and the cases cited there, bearing in mind the features that distinguish proceedings in the Tribunal from those of a court, particularly the fact that the Tribunal must investigate the facts for itself without the assistance of legal representatives for the parties (NADH at [19]; Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 (Ex parte H) at [29]). 30 As the Federal Magistrate correctly noted, where credibility is in issue, as it was in this case, questioning the applicant, even vigorous questioning, is only to be expected, especially about the central element of his claim: his alleged adherence to Falun Gong teachings. Indeed, one would expect nothing less of a conscientious decision-maker conducting a review with an open mind: Ex parte H at [30]. Here there is no complaint that the questioning was intimidating or overbearing, only that the member spent a long time on one issue (contrast Ex parte H at [31] to [32]). Even if that complaint were supported by evidence, which it was not, it would not by itself amount to bias. The appellant's case seems to be that bias is the only possible explanation for why the Tribunal did not accept his claims. That, however, is a logical fallacy. 31 Assuming that an illogical or irrational process of reasoning to a conclusion of fact may give rise to jurisdictional error (see, for example, SZMDS v Minister for Immigration and Citizenship [2009] FCA 210; (2009) 107 ALD 361,but note that judgment in the Minister's appeal to the High Court is reserved [2009] HCATrans 301 (10 November 2009)), the Federal Magistrate was right to conclude that there was nothing illogical or irrational about the Tribunal's reasoning. The inconsistencies between the appellant's account of his movements and the passport entries provided a logical and rational basis for rejecting him as a credible witness. 32 It is apparent that the appellant's only cause for complaint was that he was not believed. Yet, whether or not he should have been believed was peculiarly a matter for the Tribunal (and the Minister's delegate before it). There is nothing in the reasoning process of the Tribunal or the procedure it adopted that is open to review for jurisdictional error. 33 Accordingly, I have no alternative but to dismiss the appeal. The first respondent sought costs and there is no reason why costs should not follow the event.

Orders 34 For the above reasons the appeal should be dismissed with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.