SBZC v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 608

FEDERAL COURT OF AUSTRALIA

SBZC v Minister for Immigration & Multicultural & Indigenous Affairs
[2006] FCA 608

SBZC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & REFUGEE REVIEW TRIBUNAL

No SAD 53 of 2006

MANSFIELD J
5 MAY 2006
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 53 OF 2006

ON APPEAL FROM A DECISION OF THE FEDERAL MAGISTRATES COURT

BETWEEN:

SBZC
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

5 MAY 2006

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        The Refugee Review Tribunal be joined as the second respondent to the appeal.

2.        The appeal is dismissed

3.        The appellant pay to the first respondent the costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 53 OF 2006

ON APPEAL FROM A DECISION OF THE FEDERAL MAGISTRATES COURT

BETWEEN:

SBZC
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	MANSFIELD J
DATE:	5 MAY 2006
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate given on 10 March 2006.  The learned Magistrate dismissed an application to set aside a decision of the Refugee Review Tribunal (the Tribunal) of 29 June 2005 because his Honour did not consider the Tribunal's decision was affected by jurisdictional error.  The application was dismissed with costs to be paid by the appellant to the first respondent. 

2. The appellant has appeared in person today assisted by an interpreter.  His notice of appeal does not identify grounds of appeal nor reasons why the Tribunal's decision was made without jurisdiction.  The application to the Federal Magistrates Court asserted that the Tribunal had ‘made obvious law errors’ and had not taken into account the appellant's limited education ‘which caused his language illogical (sic) sufficiently’.  It also claimed that the Tribunal did not understand the important fact that few Chinese know the difference between a passport and a visa, and that the appellant fell into that category.  It did not indicate with any particularity why those grounds might have substance.

3. In his oral submissions today, the appellant firstly complained of the order for costs made against him by the learned Magistrate, and secondly, said that he wished the matter to be remitted to the Tribunal for re-hearing because it had erred by finding that he had lied to the Tribunal.

4. To address those matters, as best as I can discern them from the material I have referred to, I need to refer briefly to the background.

5. The appellant is from the People's Republic of China.  He arrived in Australia on a valid Chinese passport issued in February 2005.  He then held a tourist visa but it was cancelled on the day of his arrival.  I do not need to refer to the detailed reasons for the cancellation.  The appellant did not at the time, despite the imminent cancellation of his tourist visa, claim to fear persecution if he were to return to China.

6. Subsequently on 27 April 2005 the appellant applied for a protection visa under the Migration Act 1958 (Cth) (the Act). He claimed to fear persecution by reason of political beliefs attributed to him that he was involved in a Tibetan secessionist meeting or activities. He also claimed that he had been arrested, beaten and detained for about 6 months before he was released and fled from China.

7. The Tribunal did not believe his claims.  Its findings and reasons for its findings are in the following terms. 

   ‘The Tribunal accepts that the Applicant is a national of the PRC.

   The Tribunal is prepared to accept that the Applicant is Liu Shao Bo and that his passport was issued to him in the name by which he is officially known, and by which he was known on his citizen’s ID, which is issued by PRC authorities in connection with a person’s household registration.

   The Tribunal accepts that the Applicant obtained his passport without difficulty.  The Tribunal does not accept that the Applicant was able to leave the PRC without the security wing of the PSB knowing.  The arguments to such effect rely on the Applicant having come to the “unofficial” attention of the PSB.  However, the business he claims to have been implicated in is treason.  The Tribunal cannot conceive that this would be dealt with merely unofficially, with the result that an ongoing suspect, which is what the Applicant claims to have been, could slip out of the country on a passport issued in his own name.

   The Tribunal concludes that either the Applicant was given the all-clear by the PSB or the matter never occurred in the first place.  There are enough factual problems in the present case to leave the Tribunal confident that the claims about the arrest over the suspected secessionist affiliation, the matter of the fine or bribe, the need to hide, the forced closure of the hairdressing salon and the need to flee persecution, are all fabrications.  Faced with imminent deportation on 12 April 2005, because his claimed profile as a short-term tourist was distrusted, the Applicant adhered to the profile of a short-term tourist.  He made no attempt to say why he could not return to the PRC.  The fact that other detainees, amongst whom there would be many asylum seekers, asked him why he had not yet applied for a protection visa, does not satisfy the Tribunal that his application was based in good faith.  In his own evidence it was not out of ignorance of the protection visa stream that the Applicant omitted the truth at his Compliance interview; it was because he decided not to tell DIMIA what he now claims was the truth about himself.

   The Applicant claims he voluntarily told a person on his flight that he had been arrested in the PRC, but faced with deportation by DIMIA, he did not refer to problems facing him in the PRC.  The Tribunal considers it illogical and implausible that the Applicant would consciously avoid referring to the danger he faced if deported, especially after being told that he effectively had no hope of remaining in Australia as the short-term tourist he claimed to be.

   The Applicant has admitted to having told untruths to DIMIA along the way, even after he was detained and therefore at the stage of his protection visa application.  The Tribunal accepts that the Applicant has told untruths at various stages of communication with immigration and refugee portfolio decision-makers.  Whatever the reason for the Applicant deciding that he did not want to return to the PRC, the Tribunal does not accept that it is for the Convention-related reasons he has provided, which it dismisses as fabrications.

   The Tribunal does accept that the Applicant has back problems due to some recent injury but it does not accept on the evidence before it that the Applicant sustained the injury under torture or in detention.

   The Tribunal is not satisfied that the Applicant has back problems due to some recent injury but it does not accept on the evidence before it that the Applicant sustained the injury under torture or in detention.

   Having considered the evidence as a whole, the Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Convention.  Therefore the Applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.’

8. The learned Federal Magistrate recorded the appellant’s claims and how the Tribunal had addressed them.  As is apparent, its decision turned in essence on the fact that it did not accept the appellant as a credible witness.  Before the learned Magistrate, as indeed on this appeal, the appellant asserted that the Tribunal’s rejection of his claims was wrong.  The Magistrate concluded that:

   ‘there is nothing in the way in which the Tribunal dealt with [its] concerns as to credibility which is in any way, it seems to me, inappropriate or irrational or unfair, and certainly no matters which go any way towards advancing a contention that the Tribunal’s findings were vitiated by a jurisdictional error.’

9. The learned Magistrate is not shown to have misapprehended the law, or to have misapplied the law.  In my view, he correctly understood the nature of the appellant's claim to be a refugee so as to qualify for a protection visa and understood why the Tribunal rejected those claims.  After identifying what his Honour called ‘the key credibility findings of the Tribunal’, his Honour concluded that there was nothing in the way in which the Tribunal dealt with those concerns as to credibility which demonstrated jurisdictional error on its part.  Consequently he dismissed the application and ordered the appellant to pay the costs of the first respondent.

10. In my view nothing has been shown to indicate that the learned Magistrate erred, or that the Tribunal itself committed jurisdictional error in reaching its decision.  The appellant has made only very general assertions as to error on the part of the Tribunal in reaching its conclusion that he had fabricated the claims.  The Tribunal has referred to the material upon which that conclusion was reached.  It is not shown to have been irrational or unreasonable for it to have reached that conclusion upon that material.  I do not need to repeat that material.  It is referred to in the Tribunal's reasons for its decision.

11. The learned Magistrate referred to an apparent discrepancy in the appellant's evidence relating to the issue of his passport.  As the application to the Federal Magistrates Court indicated, and as the appellant has said today, that discrepancy (he claims) arises from a lack of appreciation of the difference between a passport and a visa.  That was a matter which concerned the Tribunal during the course of the hearing.  It sought the appellant's further comment upon that matter.  His further comment was duly received through his migration agent, who had represented him at the Tribunal.  Ultimately, that matter was not one which weighed in the Tribunal's assessment of the appellant's credibility.  Consequently, any lack of understanding on its part on that specific topic, in the way the appellant alleged, did not affect the outcome of the application before the Tribunal.

12. Nothing else has been identified as pointing to jurisdictional error on the part of the Tribunal.  Nor, upon my reading of its reasons, do I consider that there is other indication of jurisdictional error on its part.

13. The award of costs is a discretionary matter.  It was within the discretion of the learned Magistrate to award costs of the application before him in favour of the first respondent once he had dismissed that application.  I see no reason why the exercise of that discretion involved any error on his part.  It reflects a routine application of the discretion. 

14. For those reasons, in my view, the appeal must be dismissed.  I so order.  In my view there is also no reason why the normal order for costs should not apply.  I order the appellant pay to the first respondent the costs of the appeal. 

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             23 May 2006

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the First Respondent:	M Roder
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	5 May 2006
Date of Judgment:	5 May 2006