SZNVJ v Minister for Immigration and Citizenship

Federal Court of Australia|2010-07-23|Before: Reeves J

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of a Federal Magistrate delivered on 24 March 2010, dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal").

background and procedural history 2 The appellant is a citizen of the People's Republic of China who arrived in Australia on 21 November 2008, using a passport issued in a different name. On 2 January 2009 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister for Immigration and Citizenship ("the Minister") refused that application. The appellant then applied to the Tribunal for a review of that decision. The Tribunal subsequently affirmed the delegate's decision. The appellant then made an application for judicial review of the Tribunal's decision to the Federal Magistrates Court of Australia.

the TRIBUNAL AFFIRMS THE DELEGATE'S DECISION - APPELLANT NOT A CREDIBLE WITNESS 6 Based upon what it considered were significant inconsistencies in her evidence and her obfuscation when confronted with them, the Tribunal concluded that the appellant was not a credible witness. 7 Whilst the Tribunal was willing to give the appellant the "considerable benefit of the doubt" in accepting that her husband did in fact die on 22 December 2007 as a result of an industrial accident, it did not accept most of her other claims. These included her claims that: she was detained after the protest on 7 October 2008; she was beaten and badly abused while in detention; she suffered internal bleeding and other injuries; and that the police are searching for her in China. 8 As well, the Tribunal did not accept the appellant's explanations for her delay in applying for a protection visa between 21 November 2008, when she arrived in Australia, and 2 January 2009. 9 Taking a "wider interpretation" of her claims, the Tribunal also considered and rejected the possibility the appellant was objecting to the systemic human rights abuses and suppression of political and religious freedoms in China. On the same approach, the Tribunal found that that there was no evidence to demonstrate that the appellant held any genuine pro-democracy beliefs, or was a supporter of political freedom, or was someone who had expressed such beliefs either privately, or publicly, in Australia, let alone China. 10 In the end result, the Tribunal was not satisfied that the appellant had a well-founded fear of serious harm constituting persecution for a Convention reason, or that there was a real chance that she would experience serious harm on that basis, or any other relevant basis, if she were to return to China now, or in the foreseeable future.

the federal magistrate finds no jurisdictional error 11 The appellant filed an application for judicial review in the Federal Magistrates Court on 11 August 2009. Essentially, the appellant claimed in that application that the Tribunal failed to comply with its obligations under s 424A(1) of the Migration Act 1958 (Cth) ("the Act") and that its decision was affected by a reasonable apprehension of bias. 12 In relation to the alleged breach of s 424A(1), the appellant identified the following "information" which she claimed should have been put to her by the Tribunal: · Ground One: Paragraph [49] of the Tribunal's decision, referring to the oral information given by her at the interview before the delegate, about her son living with her husband, when she had previously claimed her husband had been killed in a quarry accident and her dispute with the authorities concerned the payment of compensation for his death; · Ground Two: Paragraphs [52] and [53] of the Tribunal's decision, where it found that the appellant had provided no evidence to support her claims to have been arrested and interrogated; and · Ground Three: Paragraph [50] of the Tribunal's decision, where it raised doubts about the genuineness of the death certificate the appellant provided to the Tribunal in order to corroborate her claims. 13 In relation to ground 1 above, his Honour found that the information did not evoke an obligation under s 424A(1) as the material did not fall within the meaning of "information" for the purposes of s 424A, relying on the High Court's decision in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190,[2007] HCA 26 at [17] to [18]. Furthermore, his Honour observed that the Tribunal ultimately accepted that the appellant's husband had died as a consequence of the quarry accident. It followed that the statements made by the appellant to the effect that her husband was alive was not ultimately "the reason or part of the reason for affirming the decision", relying on Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507;[2009] HCA 31 at [22] - [26] and MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483; [2008] FCA 319 per Heerey J at [27] - [30]. 14 His Honour essentially rejected Ground 2 because the appellant was trying to raise a complaint about the merits of the Tribunal's reasoning. 15 Similarly, his Honour found that the third ground involved a challenge to the merits of the Tribunal's decision and should, therefore, be rejected. In any event, his Honour noted that the appellant gave the death certificate to the Department and it was thus excluded from the operation of s 424A(1) by the exception contained in s 424A(3)(ba) of the Act. 16 As to the appellant's claims that the Tribunal's decision involved a reasonable apprehension of bias, his Honour found that the particulars provided by the appellant, in support of these claims, demonstrated that the appellant merely disagreed with the Tribunal's decision. Referring to the test in relation to actual and apprehended bias, his Honour held that, in the absence of clear evidence, the appellant's disagreement with the Tribunal's reasoning could not vitiate the decision on these bases. 17 At the hearing before the Federal Magistrate the appellant, through her interpreter, presented a number of oral submissions, which essentially repeated her grounds of appeal in relation to the Tribunal's compliance with s 424A of the Act (see above). 18 Accordingly, the Federal Magistrate dismissed the appellant's judicial review application for want of jurisdictional error.

The CONDUCT OF PRESENT APPEAL 19 On 14 April 2010, the appellant filed a notice of appeal in this Court which alleged that: GROUNDS

The Federal Magistrates erred in law - The Federal Magistrates was wrong in finding that the Refugee Review Tribunal ("the Tribunal") acted properly in its findings. Particulars: 1. The Federal Magistrates erred in law, because the Tribunal failed to comply with its obligations under s.424A(1) of the Migration Act 1958 (the Act). The Tribunal failed to give me clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review; and the Tribunal failed to ensure me to understand why it is relevant to the review and the consequences of it being relied on in affirming the decision that is under review; and the Tribunal failed to invite me to comment on or respond to it. 2. The Federal Magistrates erred in law, because the Tribunal's decision has included a reasonable apprehension of bias. The Tribunal failed to bring an impartial mind to determine my claims and consider my evidence. 3. The Federal Magistrate erred in law, because the Tribunal's decision has ignored important evidence in support of my claims. The Tribunal has obviously no basic knowledge about the death certificate in China. Particularly, my brother-in-law, who had arranged the funeral for my husband and who was the eldest in the family, was definitely eligible to sign the death certificate. It is very common procedure in China. In summary, I never ever believe that my application has been assessed by the Tribunal, fairly and carefully. [Errors in original] 20 At the hearing of the appeal before me on 27 May 2010, the appellant appeared in person, unrepresented, but assisted by an interpreter. Ms Clegg appeared for the Minister. 21 In her oral submissions, the appellant's main concern was that, throughout the appeal process, no one believed her claims. The appellant also relied upon the statement that the interpreter read out for her to the Federal Magistrate. This statement is reproduced in the Federal Magistrate's decision: see [2010] FMCA 199 at [15]. 22 Ms Clegg relied upon the outline of written submissions that had been filed on behalf of the Minister. In response to the appellant's oral submissions, Ms Clegg submitted that the appellant's credibility was a matter for the Tribunal and could not constitute jurisdictional error.

consideration 23 The first ground of appeal seeks to challenge the findings of the Federal Magistrate about whether the Tribunal complied with the requirements in s 424A of the Act. The appellant contends, in very general terms, that: the Tribunal failed to give her clear particulars of the information it relied upon to make its decision; the Tribunal did not explain the relevance of the information it intended to rely upon; and that the Tribunal did not invite the appellant to comment or respond. Unlike with her grounds of review before the Federal Magistrate (see [12] above), the appellant has not identified which information she says should have been provided to her under s 424A of the Act. Assuming it is the same information that she identified in her grounds of review before the Federal Magistrate, I consider that the Federal Magistrate correctly determined that that "information" did not constitute information for the purposes of s 424A: see the reasoning summarised at [13] to [15] above. 24 Furthermore, I consider the Federal Magistrate was correct in concluding that the appellant was merely attempting to use these allegations to agitate for a merits review of the Tribunal's decision. It is not the role of this Court, nor is it the role of the Federal Magistrates Court, to second guess the Tribunal's fact-finding role, or to engage in a merits review of the Tribunal's decision. These are matters that fall squarely within the fact-finding jurisdiction of the Tribunal: see, eg NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9]. 25 The appellant's first ground of appeal must therefore be rejected. 26 At this point it is appropriate to deal with ground 3 of the appellant's notice of appeal. It, too, can be rejected for the same reasons. In it, the appellant is clearly attempting to quibble with the Tribunal's assessment of the evidence relating to the death certificate the appellant provided to it. This assessment is one that falls within the fact-finding role of the Tribunal and it is, for the reasons stated above, not open to review by the Federal Magistrates Court nor, on appeal, to this Court. There is clear authority that errors in the Tribunal's factual conclusions cannot, without more, amount to jurisdictional error: see Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [137]. 27 Turning then to the appellant's second ground of appeal, in it she alleges that the Federal Magistrate erred by failing to find a reasonable apprehension of bias on the part of the Tribunal. No particulars are provided and the appellant has not provided any evidence to support the allegation - she appears to rely solely upon the Tribunal's reasons for decision. There is clear authority that an allegation of bias such as this must be distinctly made and proven: see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [69] per Gleeson CJ and Gummow J. Furthermore, it has been held that it is only in rare and extreme circumstances that bias on the part of the Tribunal can be established simply by referring to the Tribunal's reasons for decision: see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J, SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [16] per Tamberlin, Mansfield and Jacobson JJ. 28 In the absence of particulars, it is almost impossible to assess whether there is any merit in the appellant's allegations of bias. Nonetheless, from my reading of the Tribunal's reasons for decision, I do not consider this is one of those rare and extreme circumstances where bias is established by reference to those reasons. From its reasons, it is apparent that the Tribunal made a fair, balanced and comprehensive assessment of the appellant's claims. The appellant's second ground of appeal must therefore be rejected.

conclusion 29 Since I have rejected all three of the appellant's grounds of appeal, this appeal must be dismissed. I so order. I will hear the parties on the question of costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Migration Act 1958(Cth)ss 424A, 424A(1), 424A(3)(ba)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (9 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (14)