SZNDZ v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 The appellant is a 27 year old man born in China. He arrived in Australia on 11 July 2008 on a Subclass 420 (Entertainment) visa. He submitted an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (the Department) on 14 July 2008. Accompanying that application was a typed statement in English setting out the appellant's protection claims. 2 The appellant attended an interview with a delegate of the Department on 5 September 2008. In a decision dated 3 October 2008, the delegate refused to grant a protection visa to the appellant. 3 An application for review of that decision was lodged with the Refugee Review Tribunal (the Tribunal) on 27 October 2008. The appellant appeared at a hearing before the Tribunal on 8 December 2008. At the hearing he provided a letter of support from the local church in Sydney, and two documents in Chinese script, which seemed to show that he had been baptised in China. There was also evidence given by two witnesses nominated by the appellant. 4 The Tribunal made its decision affirming the delegate's decision to refuse the appellant a protection visa on 15 December 2008. 5 Essentially the Tribunal found that the appellant was not a credible witness. It said that he had been evasive in some of his evidence, and there were a number of inconsistencies which the Tribunal discussed in its findings and reasons. 6 The appellant sought judicial review of the decision of the Tribunal in the Federal Magistrates Court in an application dated 15 January 2009. As is frequently the case where the Tribunal makes credibility findings, they form the focus of the complaints by the appellant. The grounds on which he sought relief by the Federal Magistrates Court were: 1. I was not considered fairly by RRT. They low assess my risk to go back to China. I will put in jail if I attend House church gathering. 2. I am not good at speaking. I just told the goodness of God to others. I did not preach. RRT member thought I preach, then I should have known more knowledge about Bible. It is not fair. 7 Scarlett FM considered the grounds at some length in his reasons for judgment delivered on 7 March 2009, and concluded: 31. The applicant's grounds and the applicant's submissions are focussed directly on a challenge to the Tribunal's factual findings especially the Tribunal's adverse finding as to the applicant's credibility. The claims of unfairness in both ground 1 and ground 2 relate not to any alleged procedural irregularity but to the applicant's dissatisfaction with the outcome based on the Tribunal's factual findings. 32. It is clear that the Tribunal rejected the applicant's claims because of its adverse view as to the applicant's credibility. It is well established by such cases Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [(2000) 168 ALR 407; [2000] HCA 1] that credibility is a factual matter and it falls entirely within the province of the administrative decision maker; in this case the Refugee Review Tribunal. 33. So long as there is evidence upon which a factual finding including a factual finding as to credibility can be made then there is no scope for intervention by a Court conducting judicial review. The Tribunal, in its findings, set out in paras.83 through to 98 why it made the findings adverse to the applicant's credibility and in particular the evidence before it that led to those findings. In my view the Tribunal did not fall into error when it made the adverse assessment of credibility that it did. 34. The applicant of course has sought to challenge the Tribunal's factual findings but this, as Ms Kelso has correctly submitted, is no more than an attempt at merits review which is not permissible before a Court conducting judicial review of an administrative decision. It follows that the applicant's grounds of review have not been made out. I am mindful of the fact that the applicant is not legally represented although he has had the benefit of advice from a barrister on the RRT Legal Advice Panel. 8 Paragraph 33 identifies the nub of the Federal Magistrate's reasons: 33. So long as there is evidence upon which a factual finding including a factual finding as to credibility can be made then there is no scope for intervention by a Court conducting judicial review. … 9 The Federal Magistrate independently assessed the Tribunal's decision, and concluded that there was no jurisdictional error. 10 The Notice of Appeal to this Court sets out three grounds of appeal: 1. Refugee Review Tribunal had bias against me and did not make fair decision for my application 2. I lodged my application to the Federal Magistrate court. But the judge did not consider my situation and evidence I provided. They did not give me a chance to talk my fear of going back to China. 3. I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court. 11 The first ground does not relate to the judgment of the Federal Magistrate, but asserts bias on the part of the Tribunal. It is not an allegation made in the Court below. It is not particularised and is not supported by any evidence. Leave to raise that ground of appeal should therefore be refused. 12 The second and third numbered grounds demonstrate the same fundamental misunderstanding by the appellant about the role of the Court in judicial review of administrative decisions. It is not open to a Court to substitute its views as to the merits of an applicant's claims for the views of the decision-maker to which Parliament has entrusted the decision. 13 The same fundamental misunderstanding about what a Court can do is reflected in the oral submissions the appellant made to this court this morning. Essentially, the appellant submitted, "The RRT was unfair in its assessment of my case. It didn't give me a fair go. The RRT did not believe that I had been persecuted. The RRT was not fair in its assessment." 14 There were further statements concerning, amongst other things, his father and other family members and other members of his village, but the fundamental complaint concerns the merits of the findings by the Tribunal. As long as there is evidence upon which a factual finding, including a finding as to credibility, can be made, then there is no scope for intervention by a Court conducting judicial review, as Scarlett FM stated in par 33 of his reasons below. 15 For the reasons which I have given, the appeal to this Court is dismissed. I order that the appellant pay the first respondent's costs of and incidental to the appeal, to be taxed if not agreed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.