Appeal To This Court
13 On 7 December 2009 the appellant filed a notice of appeal in this Court. The grounds of appeal were framed as follows:
1. For life, I had to go to the Local government to request the compensation for our loss of job, which caused my being detained and sent to Kafeng Detention Centre. I suffered brutal torture and interrogation. During the days of police custody, I suffered mistreatment both physically and mentally. After my release, I revenged certain leaders so I was chased. With no choice left, I had to come to Australia to seek asylum. The Refugee Review Tribunal had bias against me and failed to consider my application according to S 91R of the Migration Act 1958.
2. The Federal Magistrates Court Judge didn't point out The Refugee Review Tribunal's jurisdictional error while it decided my application for protection visa.
[Errors in original]
14 The first five sentences of ground 1 relate to factual matters that were the subject of findings by the Tribunal. It is plain that a reconsideration of the merits of the Tribunal's decision is not available in proceedings for judicial review of that decision or in this appeal: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. The balance of ground 1 mirrors the first ground of review in the appellant's application in the Federal Magistrates Court. It points to no error in the decision of the Federal Magistrates Court. Read literally, ground 2 of the notice of appeal simply states a factual matter and does not identify an appealable error.
15 I have treated grounds 1 and 2 of the notice of appeal as alleging, in substance, that the Federal Magistrates Court erred in the findings and conclusions to which it came with respect to each of the grounds raised in the appellant's application filed in that court. No objection was taken by the Minister to my reading and treating grounds 1 and 2 in this way.
16 The appellant appeared in person with the assistance of an interpreter and made oral submissions. The substance of those submissions was that the Tribunal's decision was wrong because, as a matter of fact, he was persecuted in China and that, concomitantly, neither the Tribunal nor the Federal Magistrates Court considered his case very seriously. In a similar vein, he said that he was of the view that the independent country information used by the Tribunal was not accurate. These submissions were really an invitation to review the factual findings which the Tribunal had made. No submissions were directed to the existence of any appealable error in the findings or conclusions of the Federal Magistrates Court in undertaking judicial review of the Tribunal's decision. In these circumstances I have reviewed those findings and conclusions with a view to seeing whether they are attended by error. I have been assisted in this task by the written and oral submissions made on behalf of the Minister.
17 The gravamen of the Minister's submissions was that no jurisdictional error in the Tribunal's decision and procedures, and no error in the decision of the Federal Magistrates Court, have been demonstrated. I agree.
18 Specifically, there is no substance in the allegation that the Tribunal was biased against the appellant. The Federal Magistrates Court was correct to reject that allegation. The fact that the Tribunal did not accept the truthfulness of many of the appellant's claims about what occurred to him in China, or was not otherwise prepared to accept the accuracy of his claims, does not establish the existence of bias. There is no other material that would establish, or indeed even suggest, bias on the part of the Tribunal. For completeness I should add that there is nothing in the material that I have seen that would sustain a claim of apprehended bias.
19 The allegation that the Tribunal failed to consider the appellant's application according to s 91R of the Act is also without substance. As the Federal Magistrates Court correctly pointed out, because the Tribunal had rejected the appellant's factual claims, it was not necessary for the Tribunal to go on to consider whether, had it accepted that the claimed events had occurred, they would have established the requisite elements of s 91R of the Act.
20 The Federal Magistrates Court concluded that the Tribunal did not fail to comply with s 424A of the Act. In my view that conclusion was correct. Specifically, the independent country information consulted by the Tribunal about whether restaurants in Kaifeng City were government-owned up to 2008 and whether they were privately contracted out in 2008, and also about workers in state-owned enterprises (including restaurants) and the processes for workers lodging complaints and grievances in China, and resolving labour disputes, both prior to and after 2008, was not required to be disclosed under s 424A of the Act because this information fell within the exception in s 424A(3)(a) of the Act: Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92. But, in any event, the record of the Tribunal's decision shows that, on 1 July 2009, the Tribunal discussed the independent country information with the appellant, who indicated where and in what ways he disagreed with that information. The Tribunal informed the appellant that the information may be a reason for affirming the decision under review and that he was entitled to request a further opportunity to comment on the information that was put to him: see ss 424A(2A) and 424AA. There is nothing to suggest that the appellant made any such request.
21 In relation to his claim that he was not given an opportunity to explain his case, the record of the Tribunal's decision shows that the appellant was invited to attend and did attend two hearings before the Tribunal, which lasted in excess of four hours, during which the appellant's claims were discussed in detail. He was given an opportunity to give evidence and to present arguments relating to the issues arising in relation to the decision under review. There is nothing in the record of the Tribunal's decision that would indicate that it failed to comply with s 425 of the Act in any respect. The Federal Magistrates Court correctly concluded that the ground based on a failure to comply with s 425 of the Act had not been made out. I should add that a reading of the record of the Tribunal's decision shows that the Tribunal gave thorough consideration to the appellant's application.
22 No error has been demonstrated in the findings or conclusions of the Federal Magistrates Court. It follows that the appeal should be dismissed.
23 As to the question of costs, the Minister relies on the affidavit of Nicola Johnson sworn 18 February 2010 in which the sum of $2,400.00 is claimed for costs. This sum is less than the amount recoverable in accordance with Item 43H of Schedule 2 to the Federal Court Rules. I am satisfied on the evidence that the claimed sum is a fair estimate of party-party costs for the professional work to which it relates.
24 The appellant submitted that, in the event that his appeal was unsuccessful and an order for costs was made against him, he would be unable to pay costs in that sum because his financial situation is very poor. That is not a sufficient reason to fix the costs in any other sum or to depart from the usual order that costs should follow the event.
25 The appellant should pay the Minister's costs fixed pursuant to O 62 r 40C(4) in the sum of $2,400.00.
I certify that the preceding twenty-eight (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.