SZGCM v Minister for Immigration and Citizenship

[2008] FCA 863

FEDERAL COURT OF AUSTRALIA

SZGCM v Minister for Immigration and Citizenship [2008] FCA 863

SZGCM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 352 OF 2008

BUCHANAN J
10 JUNE 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 352 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGCM
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	10 JUNE 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

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 352 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGCM
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE:	10 JUNE 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. The appellant is a citizen of the People’s Republic of China.  He arrived in Australia on 21 August 2004 holding a business visa.  On 28 September 2004 he applied for a Protection (Class XA) visa.  Two days later a delegate of the respondent refused to grant a visa.  The delegate found the claims to be implausible.  He also noted that ‘this application fits a pattern of similarly scant applications using the same postal address and witness’.

2. The appellant sought a review of the delegate’s decision by the Refugee Review Tribunal (‘the RRT’) which, on 28 February 2005, affirmed the delegate’s decision.  The appellant then made an application for judicial review of the decision of the RRT in the Federal Magistrates Court of Australia (‘the FMCA’).  On 12 September 2006, by consent, the FMCA set aside the decision of the RRT and remitted the matter to the RRT to be determined according to law.

3. In a further decision of the RRT handed down on 18 January 2007 the decision of the delegate was again affirmed.  An application for judicial review of that second decision was dismissed by the FMCA on 29 February 2008 (SZGCM v Minister for Immigration & Anor [2008] FMCA 222).

4. In each of its decisions, the RRT found that the appellant was not credible.  The latest decision of the RRT gives a detailed account of the proceeding before it.  A similarly detailed account of the appellant’s evidence was given in the earlier decision of the RRT.  In its ‘Findings and Reasons’ in the latest decision the RRT drew attention to a number of inconsistencies and difficulties in the appellant’s evidence.  The RRT then announced a series of conclusions in the following terms:

   ‘The Tribunal acknowledges and appreciates that in isolation, some of the above-noted issues may be perceived as being minor, however when considered cumulatively, the Tribunal is satisfied that they are legitimate matters to be taken into account in reaching an adverse credibility finding.  In light of those comments and in consideration of the evidence as a whole, the Tribunal does not accept that the applicant has ever been a member or involved in the China Democracy Party in China (or Australia), or that he was ever a Chairperson or involved in the Qing Doa branch of the Party, or that he has ever met Xu Guang, or that the applicant has ever been arrested or detained or questioned or sentenced for one year, or imprisoned in China, or that the police went to his house to investigate him or searched his house, or that he was ever required to attend to Falun Gong practitioners, or that the authorities wanted to kill him, or that they plotted a car accident, or that he had witnessed the persecution of prisoners, or that he was kicked and suffered appendicitis as a result, or that any scar he has on his stomach is a result of any abuse by the Chinese authorities, or that he was not permitted to have any treatment in prison, or that he was forced to give any names/details of Party members, or that he was under surveillance, or that his phone was tapped, or that he was ever a political prisoner, or that the managed to come to Australia with the help of a Taiwanese company and/or boss, or that Mr Liu helped and protected him in China, or that he was ever accused of being a spy for Taiwan, or that he has suffered or would suffer any of the claimed harm.  In essence and for the stated reasons, the Tribunal finds that the applicant has not suffered any of the claimed harm and that he has fabricated his claims for the purpose of his application for a protection visa.’

5. In order for these factual conclusions to be successfully challenged it was necessary for the appellant to demonstrate in the FMCA that some jurisdictional error had been committed by the RRT.  The grounds of the application for judicial review of the decision of the RRT handed down on 18 January 2007 were stated in an amended application before the FMCA in the following terms:

   ‘1.The Tribunal had bias against me and made a decision on my application based [sic] the officer’s assumption.  The officer said at the hearing that only by paying money to police, people can get a copy of the document to prove being arrested.  The decision was biased.

   2.The Tribunal failed to notify me in writing the reason or part of the reasons for affirming the decision. The Tribunal therefore failed to consider my application for a protection visa in accordance with S424A of the Migration Act 1958. I was not given an opportunity to comment upon the reason.’

6. The FMCA dealt with those grounds in the following way (at [37] – [38] and [40] – [41]):

   37.The Tribunal: accurately identified and understood the claims made by the Applicant; considered all evidence given by the Applicant, including to the earlier constituted Refugee Review Tribunal; invited the Applicant to come to a further hearing; raised with the Applicant concern it had about his evidence and noted the Applicant’s responses; made factual findings based on the evidence and material before it and for which it provided reasons, including its adverse credibility findings; applied the correct law to the facts as it found them to be; and, reached conclusions according to law.

   38.      Accordingly ground 1 is not made out.

   …

   40.In the case before this Court, the only information to which the Tribunal had regard in making its adverse findings was information given to it by the Applicant. There was no information to which the Tribunal had regard that otherwise enlivened the obligations of s.424A of the Act.

   41.      Accordingly, ground 2 of the application is not made out.’

7. The grounds of appeal in this Court are as follows:

   ‘1.The Tribunal had bias against me; she said at the hearing that only by paying money to police, people can get a copy of the document to prove being arrested.

   2.The Tribunal failed to consider my application in accordance with S424A of the Migration Act 1958 The “Act”) notice in writing of particulars of information that formed part of the reasons for affirming the decision of the delegate.

   3.The Tribunal failed to refer to proper independent information for the consideration of my application.’

8. No challenge was made in the grounds of appeal to the analysis and conclusions of the FMCA, set out earlier.  The appellant did not, as directed, file written submissions in support of the appeal.  At the hearing of the appeal he declined the opportunity to make any oral submission.  The appeal process appears to have been treated as an empty formality.  The time of the Court and its officers and the resources of the Minister have been wasted in the process.

9. There is no reason to doubt the correctness of the conclusions of the FMCA.  None has been suggested.  None appear to me from my own reading of the decision of the RRT.  The appeal will be dismissed.

10. Although written submissions for the Minister asked that the appeal be dismissed with costs, at the hearing of the appeal Mr Cleary, who appeared for the Minister, indicated that he wished to advance some evidence on that issue.  In the circumstances I will deal with the issue of costs in the light of any further, more specific, application made in that regard.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:        10 June 2008

The Appellant appeared in person
Counsel for the First and Second Respondents:	Mr M P Cleary

Date of Hearing:	19 May 2008
Date of Judgment:	10 June 2008