SZCUY v Minister for Immigration and Citizenship

[2007] FCA 700

FEDERAL COURT OF AUSTRALIA

SZCUY v Minister for Immigration and Citizenship [2007] FCA 700

SZCUY v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 312 OF 2007

SIOPIS J
11 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 312 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCUY
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	11 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

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 312 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCUY
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE:	11 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate of 14 February 2007, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) of 7 August 2006, handed down on 22 August 2006.  The Tribunal had affirmed a decision of a delegate of the first respondent (the delegate) to refuse to grant a protection visa to the appellant.  This Tribunal was a reconstituted Tribunal following a successful application by the appellant for judicial review.

2. The appellant is a citizen of the People’s Republic of China.  At the hearing before the Tribunal the appellant claimed to have a well‑founded fear of persecution because he assisted anti‑government protesters to evade police.  The appellant claimed to have managed a restaurant in China catering to long‑distance truck drivers.  The appellant claimed that very late one night in July 2000, three men came to eat at his restaurant.  One of the men, a truck driver at the local mine, Mr Shao, was a friend of the appellant.  After the three men left, police came and questioned the appellant about the men, stating that they were wanted in connection with anti‑government activities.  The appellant denied any knowledge of the men.  On the following day the appellant learned that the three men may have led a protest of mine workers against the government in relation to two caving accidents in the Sanlidong coal mine in June 2000.

3. The appellant said that his friend telephoned him two days later, saying his transport had failed and that one of the party needed medical attention.  The appellant arranged for them to stay with his uncle, who practised Chinese medicine, and the uncle attended to the injured man.  The appellant claimed that they stayed at his uncle’s home until August, at which time he paid a truck driver to take the men to Mongolia.  The appellant said that he believed that the Mongolian government returned the men to China.

4. The appellant said that in November 2000, he and his uncle were arrested.  The appellant was detained from November 2000 to May 2001.  The appellant claimed that he had been able to communicate with his uncle in exercise periods whilst in detention, and learned that his uncle had claimed responsibility for the escape of the three men, before he was “tortured to death” in the detention centre.  He claimed that his restaurant had been confiscated.  The appellant went on to claim that in July 2002 he was able to leave China, with the assistance of a businessman, Mr Wen, who had previously been aided by the appellant’s uncle.

5. The Tribunal found the appellant was not a credible witness.   It accepted that the appellant owned a restaurant but did not accept his other claims.  The Tribunal found the appellant’s claims regarding his friend, the other protestors, his contact with his uncle in detention, and his own arrest and departure were internally inconsistent, inconsistent with independent country information, confused and far‑fetched, and also had the appearance of having been learnt by rote.

6. The appellant also provided the Tribunal with a statutory declaration signed by Hong Mei Li dated 17 July 2006, in support of his claim.  The Tribunal found that it could “not place any weight on the statement as credible” given its adverse credibility findings against the appellant.

7. In summary the Tribunal stated:

   In light of the Tribunal’s grave adverse credibility findings with regard to the [appellant’s] claims and evidence ‑ namely that the [appellant] never had a friend named Mr Shao, that Mr Shao was never involved in any protest, the timing of the protest and the timing of his assistance to his friend, the existence of an uncle with whom he was detained and who was “tortured to death”, the existence of a businessman named Wen ‑ the Tribunal cannot be satisfied that the [appellant] fears of harm [sic] arising from this claim in the reasonably foreseeable future in China are true.

   The Tribunal gave the opportunity at hearing to explain the inconsistencies and noted its grave concerns about his credibility.  The [appellant’s] response ‑ which the Tribunal does not consider to be of any merit ‑ was to say that “he can only say what happened”.

   The Federal Magistrate

8. On 25 September 2006, the appellant filed an application for judicial review in the Federal Magistrates Court.  He relied on an amended application filed on 1 February 2007 to assert two grounds of appeal, namely, jurisdictional error and the absence of natural justice.  The Federal Magistrate noted that the substance of the appellant’s case was to be found in the particulars which were that:

   (a)the Tribunal failed to consider his application properly and fairly and was biased;

   (b)the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth) (the Act); and

   (c)the Tribunal failed to comply with s 425 of the Act and that had restricted him in giving evidence.

9. As to the first ground, the Federal Magistrate found there was no evidence of bias on the part of the Tribunal.

10. In relation to the second ground, it was held that the Tribunal was not bound by s 424A of the Act to give particulars in relation to its findings of inconsistency in respect of the appellant’s own evidence, because that was not “information” to which s 424A applied.

11. The Federal Magistrate also held that there was no breach of s 425 of the Act, as the appellant had not produced evidence that he had been restricted by the Tribunal in giving evidence during the hearing.  The Federal Magistrate observed that the duration of the hearing was in excess of three hours.  He also observed that the Tribunal was not, in any event, required to apprise the appellant of its thought processes.

    The appeal

12. The substance of the appellant’s notice of appeal filed on 5 March 2007 is to be found in the particulars of the grounds of appeal.

13. In effect, the appellant complained that the Federal Magistrate erred in concluding that:

    (a)        the Tribunal was not biased;

    (b)the Tribunal had not failed to comply with its obligations under s 424A of the Act; and

    (c)the Tribunal had not failed to comply with its obligations under s 425 of the Act.

14. As to the first ground, the Federal Magistrate found that an allegation of bias was a serious allegation that had to be strictly proved, and that the appellant had failed to provide any evidence of bias.  The transcript of the hearing was not in evidence.  Before me the appellant said that the Tribunal member was “not in a good mood” during the hearing.  In my view, this does not afford a sufficient basis upon which to conclude that the Federal Magistrate erred in concluding that the appellant had failed to establish that the Tribunal was biased, which as the Federal Magistrate said, must be strictly proved.

15. As to the second ground of appeal, the appellant accepted in his submissions that the Tribunal had put to him during the hearing its concerns about the inconsistencies and credibility of his evidence, and given him an opportunity to comment. However, the appellant submitted that that was not sufficient because the Tribunal had an obligation under s 424A of the Act to provide him with that “information” in writing. Under s 424A(3)(b) there is no obligation on a Tribunal to provide an applicant with information which the applicant gave to the Tribunal for the purposes of the application, nor is there an obligation under s 424A of the Act to advise an applicant of the thought processes or determinations of the Tribunal (SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214).

16. Therefore, the Federal Magistrate did not err in concluding that there was no requirement on the Tribunal to advise the appellant in writing of its concerns about the inconsistencies in his evidence and his credibility in order for the Tribunal to comply with s 424A of the Act.

17. As to the ground of appeal based on the contention that the Tribunal did not comply with its obligations under s 425, counsel for the first respondent referred to the decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592. I accept counsel’s submission that the circumstances of this case are distinguishable from SZBEL because in this case the delegate’s decision also rested upon findings that the appellant’s version of events was implausible for similar reasons. Further, and in any event, in this case, as the appellant said in his submissions, the Tribunal did advise the appellant during the hearing of its concerns about the inconsistencies and credibility of the appellant’s evidence which he had given, and gave him an opportunity to comment. The Tribunal’s reasons, referred to at [7] above, confirm that this occurred.

18. Accordingly, in my view, the Federal Magistrate did not err in concluding that the Tribunal had complied with its obligations under s 425 of the Act.

19. At the hearing of the appeal, the appellant also referred to various instances in which he said his evidence had been misunderstood by the Tribunal.  However, the appellant’s submission amounted to an impermissible attack on the merits of the Tribunal’s decision.  The submission did not provide any basis on which to conclude that the Tribunal fell into jurisdictional error.

20. The appeal is dismissed.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:        11 May 2007

Counsel for the Appellant:	The Appellant appeared in person.
Counsel for the First Respondent:	Ms L Clegg
Solicitor for the First Respondent:	Clayton Utz
Date of Hearing:	8 May 2007
Date of Judgment:	11 May 2007