SZCHG v Minister for Immigration & Multicultural & Indigenous Affairs

[2006] FCA 1225

FEDERAL COURT OF AUSTRALIA

SZCHG v Minister for Immigration & Multicultural & Indigenous Affairs
[2006] FCA 1225

SZCHG v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND ANOR
NSD 630 OF 2006

RARES J
18 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 630 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCHG
Appellant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	18 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent's costs fixed in the sum of $3,000.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 630 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCHG
Appellant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	18 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1. This is an appeal from a decision of the Federal Magistrates Court, SZCHG v Minister for Immigration and Multicultural Affairs [2006] FMCA 346. The trial judge carefully reviewed all of the issues raised before her in the application for judicial review of the decision of the Refugee Review Tribunal, made on 30 October 2003 and handed down on 25 November 2003. In light of her Honour's very careful, and in my opinion, legally flawless review of the Tribunal decision and the bases on which the appellant sought before her to ascribe error of a jurisdictional kind to the Tribunal's decision, it would serve no purpose to repeat that judgment which I regard to be correct for the reasons that her Honour gave.

2. None of the appellant's grounds raised before her Honour have any legal substance. The appellant sought to tender a transcript which he had prepared that was filed on 26 July 2006 with the court. I will have that marked for identification 1 in the appeal. He also asked to tender and have played, tapes of the hearing before the Tribunal. I am of opinion that neither the transcript nor the tapes of the Tribunal hearing are admissible on the appeal, either on ordinary tests for the admissibility of fresh evidence, or in the exercise of any discretion which I have under s 27 of the Federal Court of Australia Act 1976 (Cth) or O 52 r 36.

3. I do not place any weight on the fact that the appellant has not provided an affidavit in accordance with the rules relating to the circumstances in which he seeks to leave fresh evidence, as he is unrepresented, and although he is very articulate and obviously capable, I do not feel that the failure to comply with the rules should influence my decision in this respect, in any way.  Essentially, what the appellant has told me is his purpose in having me listen to the tapes or read the transcript is to see that, in its questioning of him, the Tribunal engaged in an exercise of irrelevant and misinformed questioning and demonstrated that it knew nothing about the construction industry, in China or generally, being the industry in which he was involved and in which the critical incident he claimed occurred.  He said this would show why the Tribunal erred.  But, the Tribunal, having heard his evidence, did not accept that the adverse consequences which he claimed had occurred, as a consequence had, in fact, occurred. 

4. But those circumstances were essentially the basis of his claim for a protection visa and focused on his claim of mistreatment by the authorities and detention for about eight months in China.   At the end of the day, having heard the appellant's explanations as to why fresh evidence might be received, I formed the view that the most that could be made of it would be that it might be useful in understanding the appellant's argument that the Tribunal erred in its consideration of the merits of his application. 

5. The discretion to admit fresh evidence is not open to be exercised on appeal where the appellant considers that it merely could be useful:  CDJ v VAJ (1998) 197 CLR 172 at 203 [113] per McHugh, Gummow and Callinan JJ. Moreover, it is clear that the tapes were available for the hearing before the Federal Magistrates Court and I am not satisfied that there is any reason why, having regard to the way in which the appellant sought to argue matters before her Honour, it would not have occurred to him that it was relevant to put them before the court to substantiate his claims.

6. While there are no fixed rules which govern the exercise of the discretion, matters which are usually relevant include whether the person applying to have the discretion exercised in his or her favour, exercised due diligence in attempting to procure the evidence before the trial but the evidence was not available for the trial, and if it had been available at the trial an opposite result would, or was likely to, have been attained;  see the cases collected in Huang v University of New South Wales (No 2) [2006] FCA 596 at [2]-[6].

7. I have had regard to the fact that before the Tribunal the appellant was assisted by a migration agent who was in a position to make submissions to protect the appellant's interests in the event that some cause might arise.  Indeed, the agent at one point asked for and obtained leave to put before the Tribunal, medical evidence as to the appellant's condition, following a complaint he had made during the hearing of having headaches and the like.

8. I have given careful consideration to the matters which the appellant argued before me, as demonstrating reasons why he said the trial judge erred, or more particularly, why the Tribunal did not carry out the function of review which it was obliged to perform under the Migration Act 1958 (Cth) (‘the Act’).

9. The appellant argued that the Tribunal failed to comply with s 425 because, although he had been invited to a hearing on the basis that the Tribunal had written to his migration agent on his behalf and informed him that, having reviewed the papers, it was unable to come to a decision in his favour, he said, in essence, that after the hearing the Tribunal should have given him some further opportunity to deal with the adverse findings to which it ultimately came. That is not what the law requires. I am satisfied that the Tribunal acted in accordance with the regime of natural justice provided under Pt 7 Div 4 of the Act. No jurisdictional error has been established.

10. The appellant then raised a large number of complaints about the way in which the Tribunal member questioned him and considered, when it came to making its decision, his claims, ultimately rejecting the substance of all of his claims which, were they accepted, would warrant the grant of a protection visa. It is not the function of the court to engage in a review of the factual merits of a claim for a protection visa which is considered by the Tribunal. The Parliament has confided to the Tribunal the function of determining on a review, under s 414 of the Act, whether it is satisfied that the applicant for review has established the basis on which Australia owes him or her protection obligations under the Refugee Convention.

11. While there are elements in the way in which the Tribunal Member questioned the appellant - which are revealed in the Tribunal Member's detailing of the evidence before him - which illustrate lines of questioning which might not be thought necessarily cogent, the fact is that it is for the Tribunal to approach its task in assessing an applicant's claims as it sees fit.  There is no jurisdictional error in the Tribunal asking questions which may be simply asked out of ignorance so as to inform itself of a position or to correct an impression in its own mind, and when to someone on an appeal such as this, they may appear to be in a different light to the way in which they were asked or argued.

12. No doubt the appellant feels a sense of grievance that, for example, when he was questioned about his responsibilities as a construction manager for nine buildings with a team of 300 people, the Tribunal Member appeared to suggest to him different ways of building and scheduling the building and employee workloads which, to the appellant, appeared to reveal ignorance or made no sense.  Indeed, I must say, to me some of the questioning appears to reveal at least ignorance. 

13. But at the end of the day, these were not the matters on which the Tribunal found itself not satisfied in respect of the appellant's claims. Rather the Tribunal came to the ultimate view that it was not satisfied the appellant had been detained by the authorities, for a period of about eight months, and subjected to torture and other unlawful treatment, as he claimed.  And it did not find that he had been dismissed from his work, or that he had been required, thereafter, to report to neighbourhood committee every week and to the local police every month, as he claimed.

14. Essentially, the Tribunal rejected all the claims the appellant made as to his treatment following a tragic incident at the work site.  For those reasons the Tribunal said it was not satisfied that he had any basis to raise a well-founded fear of persecution or that he had been persecuted in the past.  Accordingly the Tribunal came to the view that there was no real chance that he would be subjected to any treatment, were he to return to China, which would otherwise have engaged Australia's protection obligations.  These were all findings of fact and no jurisdictional error has been pointed to by the appellant in any of the material to which he has taken me.

15. The appellant suggested that the Tribunal Member should have been in a position of knowing the details of, and have some expertise in, the construction industry in China before he questioned him, and that it should have known all about the local conditions in China.  This reveals a misunderstanding by the appellant of the function of the Tribunal and the way it goes about its operations.  It may have been a misapprehension which arose from the way in which the Tribunal questioned him in trying to inform itself as to what his claims were.  At the end of the day, however, the Tribunal Member does not appear, on the material before me, to have been anything other than pursuing inquiries to satisfy his own mind about matters which were open to him to ask. 

16. The Tribunal was also alleged to have been biased because it came to a conclusion that it did not accept the appellant's claim as credible in relation to how he obtained his passport, were the incidents of persecutory conduct against him really to have taken place.  The Tribunal rejected the appellant’s claim that he had been instrumental in demonstrating against the general manager and his employer following a tragic incident in which six workers lost their lives, through, he said, a method of pursuing the construction that was induced by the general manager having taken bribes.  Having noted those claims, the Tribunal considered his claims that, following his release from prison, he had gone about getting a passport through a friend and had paid the friend a very substantial sum of his savings with which to bribe officers.  The Tribunal concluded that, in effect, the appellant had been saying to it that although he claimed to have been regarded by the Chinese authorities as a political criminal, he had spent his life savings to obtain a passport in his own name rather than taking the easier course of obtaining a passport in someone else's identity.

17. The appellant put to me that he could not understand why the Tribunal came to that conclusion. The fact is that the Tribunal was obliged under s 430 of the Act to give reasons for its conclusions and set out its material findings of fact. It fulfilled that function, there is nothing inherently irrational or illogical in the conclusion about the passport to which it came.

18. At the end of the day it was for the Tribunal to determine whether the appellant satisfied it of the substance of his claims and the court cannot interfere simply because, if it were the decision maker, it may or may not have taken some other view about the facts.

19. I see no error in the way the Tribunal assessed the appellant's claims or in the conclusions, or in its ultimate determination that, having made that assessment, the decision of the delegate to refuse him a protection visa should be affirmed.  In those circumstances I must dismiss the appeal. 

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        12 September 2006

Appellant:	In person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 August 2006
Date of Judgment:	18 August 2006