SZGZZ v Minister for Immigration and Citizenship

Case •

[2007] FCA 801

•

24 May 2007

FEDERAL COURT OF AUSTRALIA

SZGZZ v Minister for Immigration and Citizenship [2007] FCA 801

SZGZZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD554 OF 2007

COLLIER J
24 MAY 2007
BRISBANE (HEARD IN SYDNEY)


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

NSD554 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGZZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

24 MAY 2007

WHERE MADE:

BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

NSD554 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGZZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

COLLIER J

DATE:

24 MAY 2007

PLACE:

BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

  1. This is an appeal from the decision of Smith FM delivered 19 March 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

    Background and claims

  2. The appellant is a citizen of the People’s Republic of China (“PRC”) who arrived in Australia on 10 October 2004. On 12 October 2004 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 21 February 2005. On 11 March 2005 the appellant applied to the Tribunal for a review of that decision providing a statutory declaration outlining his claims and recanting on the claims made in his protection visa application due to his concern that the migration agent he had used for his protection visa application had not correctly presented his claims.

  3. The appellant in his statutory declaration to the Tribunal claimed to have well-founded fear of persecution as a result of his political opinion. The appellant claimed that his father organised protests during the Cultural Revolution and sent his son away to live with his friend so he would not be tainted by his background. The appellant claimed that when he was sent away his name was changed to that of his father’s friend. The appellant claimed that when his adopted father died he returned to his village.

  4. The appellant claimed that in 2003 he met a person who could smuggle people out of the country and who arranged for the appellant to obtain a passport and travel abroad as an “export labourer”. The appellant claimed, however, that once he received his passport he was unable to go abroad as he could not afford the rest of the fees demanded by the smuggler.

  5. The appellant claimed that in the middle of 2004 he got into trouble with the authorities on account of his political opinions. The appellant claimed he had assisted a friend (referred to by the Federal Magistrate as “Mr Z”) in the distribution of a petition drafted by Mr Z which contained criticisms levelled at the government. The appellant claimed that he organised farmers to distribute the pamphlets and that their activities strongly influenced local farmers to hold protests against the government. The appellant claimed that in late July 2004, nearly one thousand farmers and their relatives participated in a sit-in protest. The appellant claimed he was warned that he had become a key target for an investigation by the Public Security Bureau in relation to the protests. He claimed that Mr Z was arrested shortly after the appellant left for Beijing.

    The decision of the Tribunal

  6. The hearing before the Tribunal took place on 20 June 2005. The appellant attended the hearing and gave oral evidence with the assistance of an interpreter. His passport was provided to the Tribunal. Although the appellant was represented by an adviser, the adviser did not attend the hearing. At the conclusion of the hearing before the Tribunal the appellant submitted a document purporting to be a summons for his father.

  7. The Tribunal found that no part of the evidence of the appellant supported a view that the anomaly about the name of the appellant and the place his passport was issued aroused Convention related concerns.

  8. The Tribunal accepted that the initial motivation for the appellant moving to Australia was economic, as claimed in submission to the Tribunal and at hearing. The Tribunal did not accept on the evidence before it that the appellant attracted negative attention from the authorities in the PRC and found that the evidence about the demands of farmers was vague and unimpressive. The evidence about the concerns of the authorities regarding the appellant was inconsistent. The Tribunal could not be satisfied that the appellant triggered a political movement as described. The Tribunal did not give any weight to the summons presented by the appellant as there were concerns as to its genuineness, given that the appellant had never referred previously to his father being summoned.

  9. The Tribunal was of the view that if the authorities were concerned about the appellant they would have cancelled his passport. The evidence as to why they did not was found to be unimpressive and not persuasive. The Tribunal was not satisfied the appellant faced a real chance of Convention-related persecution in the PRC or that his fear of such persecution was well-founded. The Tribunal found the appellant was not a refugee and affirmed the decision not to grant a protection visa.

    Grounds before the Federal Magistrate

  10. On 23 August 2005 the appellant applied for judicial review of the decision of the Tribunal which asserted two grounds of review, namely that there was an error of law constituting jurisdictional error and a procedural error constituting a denial of natural justice. Particulars were provided in support of these grounds which in essence raised the following issues:

    ·the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth) (“the Act”)

    ·the Tribunal failed to comply with its obligations under s 425 of the Act

    ·the Tribunal made an erroneous finding and reached a conclusion in a way that has affected the exercise of power as the Tribunal did not ask the appellant questions about his claims or for details about the farmer’s movement

    ·the Tribunal ignored documentary evidence provided in the form of the summons: the Tribunal did not attempt to verify the summons

    ·the appellant had doubts as to whether the Tribunal intended to make a fair decision on the application. The Tribunal created inconsistencies and mistakes in his claims.

    Decision of the Federal Magistrate

  11. The Federal Magistrate considered the grounds in light of the Tribunal’s decision but found no jurisdictional error. The Federal Magistrate found there was no substance to the arguments in relation to a breach of s 424A of the Act. The conclusions in relation to the travel of the appellant out of the PRC were based on information given by the appellant at the hearing. The reference to not having previously referred to the father of the appellant being summonsed was not subject to s 424 of the Act as the Tribunal did not positively draw an adverse conclusion from an omission in an earlier source of information. There was no positive use of the information taken from previous statements.

  12. In relation to the alleged breach of s 425(1) of the Act the Federal Magistrate found that the appellant was fully alerted to issues going to his credibility upon which the Tribunal ultimately decided the case.

  13. The Federal Magistrate was not convinced that the Tribunal’s conclusions were not open to it on the evidence before it. His Honour found that it was not correct to assert that the Tribunal had deliberately ignored the summons. There was no substance in the evidence that the Tribunal had actual bias or gave rise to an apprehension of bias. There was nothing unwarranted, irrational or unreasonable in the inferences drawn by the Tribunal from the evidence of the appellant concerning his travel and the reasons for travelling.

  14. His Honour was not persuaded by the arguments of the appellant and found the Tribunal’s decision was a privative clause decision. His Honour dismissed the application.

    Appeal to this Court

  15. On 3 April 2007, the appellant filed a notice of appeal which raised the following grounds:

    1.        The learned Federal Court of Australia erred in law.

    2.The learned Federal Court of Australia was wrong in finding that the Refugee Review Tribunal acted properly in its findings.

    Particulars

    1.The Tribunal failed to comply with its obligations under s 424A(1) of the Act;

    2.        The Tribunal made its decision based on unwarranted assumption; and

    3.The Tribunal failed to comply with its obligations under s 425 of the Act.

  16. I understand from the first two paragraphs of the notice of appeal that the appellant was actually referring to the decision of the Federal Magistrates Court, rather than the Federal Court of Australia.

  17. Considering in turn each issue in appeal:

    1. The Tribunal failed to comply with its obligations under s 424A(1) of the Act

  18. In his written submissions, the appellant stated as follows:

    “c. In my case, the Tribunal has considered the following pieces of information as the reason, part of the reason, for affirming the decision that is under the review:-

    - There is no evidence in this case of the Applicant being known legally as “Qian Jin” in Fujian or anywhere; and the passport was issued in Beijing, rather than where the Applicant lived;
    - The Applicant never referred previously to his father having been summoned; and
    - The applicant’s passport has not been cancelled by the Chinese government.

    d. It is apparently (sic) that the above-mentioned information is not the one specifically excluded by sub-section (3) of s 424A, because:-

    - that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
    - that the applicant gave for the purpose of the application; or
    - that is non-disclosable information.

    e. But, the information from above-mentioned documentary evidence is the one that the Tribunal has used as the reason, or part of reason, in making its decision.
    f. Unfortunately, the Tribunal, before making its decision, failed to provided (sic) me particulars of the  information mentioned above; and failed to inform me or ensure me, clearly and properly, that those pieces of information would be directly in relation to his final decision; and failed, honestly and fairly, invited me to comment on them
    g. Therefore, the Tribunal has, apparently, failed to comply with his obligation under s 424A (1) of the Migration Act 1958 (“the Act”).”

  19. I have carefully considered the submissions of the appellant in relation to this issue, however am satisfied that there has been no failure of the Tribunal to comply with s 424A(1) of the Act, nor any error on the part of Smith FM in respect of this issue.

  20. I note that the appellant’s submission contained in para c quoted above was specifically considered by the Federal Magistrate, as that submission was itself encapsulated in further particulars filed by the appellant in relation to the proceedings before his Honour. In his reasons for judgment, his Honour said as follows:

    17. In my opinion, there is no substance to any of the applicant’s arguments in relation to a breach of s 424a(1). The Tribunal’s conclusions in relation to the applicant’s travel out of China and his reasons for travelling in 2004 rather than when he acquired his passport in 2003 were, in my opinion, conclusions which were based only on information given by the applicant to the Tribunal at the hearing. The Tribunal was not obliged to give its thought processes about that information to the applicant by way of an invitation for written comment.
    18. The Tribunal’s reference to the fact that the applicant had not previously referred to his father having been summonsed soon after the applicant arrived in Australia, did not, in my opinion, make use of information which disclosed a need to comply with s 424A(1). In my opinion, the Tribunal used only information as to when that particular claim was first made, and did not positively draw an adverse conclusion from an omission in an earlier source of information. It therefore falls within the reasoning referred to by the Full Court in Applicant S301/2003 v Minister for Immigration and Multicultural Affairs (2006) FCAFC 155 at [19], and also Weinberg J in NBKS v Minister for Immigration and Multicultural Affairs (2006) FCAFC 174 at [31]-[42]. There was not, in the present case, a “positive use” of information taken from previous statements of the applicant within the authorities cited by Weinberg J.
    19. The Tribunal’s assessments of information concerning the applicant’s name and passport and the summons to the applicant’s claimed father, used information given to the Tribunal at the hearing. The assessments themselves were not “information” coming within s 424A(1).
    20. For the above reasons I am not satisfied that there was any failure to comply with s 424A(1) in this case.

  21. In my view no error appears from the comments of Smith FM. In addition to his Honour’s reasons, I also note that:

    ·To the extent that the appellant claims that the Tribunal erred when it said there was “no evidence” of him being known legally as “Qian Jin” in Fujian or anywhere, this is not information within the meaning of s 424A(1), but rather was an assessment by the Tribunal of the evidence, and accordingly a subjective appraisal by the Tribunal of the facts: VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 206 ALR 471 at 477.

    ·I understand that the reference to the Tribunal’s finding that the applicant had never referred previously to his father having been summonsed was in relation to issues raised in the original claim of the appellant before the Tribunal. In any event, in its decision, the Tribunal states:

    The Tribunal finds that it cannot give any weight to the alleged summons submitted by the Applicant. The Tribunal has concerns as to its genuineness, given that the Applicant never referred previously to his father having been summoned. In any event, the Tribunal cannot be satisfied on the evidence before it that the purported summons relates to the Applicant.

    My understanding of this issue is that details concerning the appellant’s father were, at the end of the day, considered by the Tribunal as not relevant, and were treated as of no weight by the Tribunal.

    2.        The Tribunal made its decision based on unwarranted assumption

  22. This ground of appeal was not particularised, however at the hearing the appellant made oral submissions which I understand are referable to this ground.

  23. In particular, the appellant submitted that:

    a.the Tribunal was wrong to find that the appellant had contacts in Australia before he left the PRC who assisted him in making a protection visa application,

    b.the Tribunal was wrong to have doubted his credibility as to the location at which he claimed his passport was issued

    c.the Tribunal was wrong to have doubted his credibility in relation to the summonsing of his father.

  24. The appellant further submitted that he was not fairly treated by the Tribunal and that the Tribunal and the Federal Magistrate made a wrong decision. These issues had not been raised previously in either the notice of appeal or the written submissions, however Mr Smith for the respondent indicated that he was able to address me on these points, and did so in his oral address.

  25. In relation to these issues raised at the hearing, I note that the appellant’s disagreement with the factual findings of the Tribunal does not itself allow review by this Court: NAHI v MIMIA [2004] FCAFC 10 at [10].

  26. Accordingly, although the appellant claimed that the Tribunal erred in relation to findings that it was “very likely” the appellant had migration assistance contacts in Australia (in particular at p 13 of the reasons for decision of the Tribunal), at most this would be an error of fact which is not reviewable in this Court.

  27. Further, as Mr Smith for the respondent submitted at the hearing, the finding of the Tribunal with respect to such contacts was an inference which could be drawn from information which the appellant himself provided to the Tribunal. This information included the appellant’s statement that he had previously tried to come to Australia for economic reasons, that his passport had a transit visa allowing him only three days in Australia, and that he had applied for a protection visa two days after arriving in Australia. Accordingly, I note that that information was therefore not relied on by the Tribunal in breach of s 424A of the Act.

  28. Finally, to the extent that this finding, or matters with respect to the place of issue of his passport or the summonsing of his father influenced the Tribunal’s assessment of the credibility of the appellant.

  29. I note that:

    a.any assessment of his credibility by the Tribunal was an issue for the Tribunal, which can only be disturbed if, in making that assessment, there was jurisdictional error in the Tribunal. No jurisdictional error appears from the reasons for decision in respect of this issue, and

    b.in any event, and with respect to the appellant, these issues appeared to be minor matters of little or no weight in the deliberations of the Tribunal.

    3. The Tribunal failed to comply with its obligations under s 425 of the Act

  30. Section 425(1) provides:

    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

  31. Section 425(2) provides exceptions to the general provision in sub-section (1).

  32. In this case there appears to be no serious contention that the appellant was not invited to appear before the Tribunal in accordance with s 425. Indeed, as the reasons for decision of the Tribunal indicate, the appellant did appear before the Tribunal, and put his case. In my view, this ground of appeal cannot be substantiated.

    THE COURT ORDERS THAT:

    1.The appeal be dismissed.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:        24 May 2007

Counsel for the Appellant: The appellant appeared in person
Counsel for the Respondent: JD Smith
Solicitor for the Respondent: DLA Phillips Fox
Date of Hearing: 24 May 2007
Date of Judgment: 24 May 2007
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NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10