SZHMH v Minister for Immigration and Multicultural Affairs
[2006] FCA 1139
•7 AUGUST 2006
FEDERAL COURT OF AUSTRALIA
SZHMH v Minister for Immigration and Multicultural Affairs [2006] FCA 1139
Judiciary Act (1903) (Cth): s 39B
Migration Act (1958) (Cth): ss 36(2), 424ASZHMH v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD884 OF 2006JESSUP J
7 AUGUST 2006SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
NSD884 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZHMH
AppellantAND:
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
JESSUP J
DATE OF ORDER:
7 AUGUST 2006
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
NSD884 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZHMH
AppellantAND:
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
JESSUP J
DATE:
7 AUGUST 2006
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal against a judgment of the Federal Magistrates Court given on 19 April 2006, dismissing an application for judicial review under s 39B of the Judiciary Act (1903) (Cth) with respect to a decision of the Refugee Review Tribunal given on 29 September 2005. The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant the appellant a protection visa under the Migration Act (1958) (Cth) (“the Act”). The basis of the Tribunal’s affirmation of the delegate’s refusal was that the appellant was not a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol, and did not, therefore, satisfy the relevant criteria in s 36(2) of the Act.
The Tribunal was not satisfied that the appellant had a well-founded fear of persecution for any Convention related reason. The appellant is a citizen of the People’s Republic of China. He claimed that he had a fear of persecution which was well founded and that the persecution, or the threat of it, arose because of his political opinion. He claimed to have been involved in a pro-democracy group sponsored by a Taiwanese agency. He claimed that he had been employed as a driver and a guard for the local Public Security Bureau, in which role he collected confidential documents and information for his group, that he recruited people to collect further documents and information, that a member of the group was arrested for obtaining information which related to the Chinese anti-secession laws under the appellant’s instructions, and that other members of the group were later arrested.
The Tribunal accepted that the appellant was a driver for the Public Security Bureau, but made a number of adverse findings as to the appellant’s evidence before it. The Tribunal did not accept that the appellant was part of a pro-democracy group, or that he obtained confidential information. It did not accept that high-level political and military documents were held at the local police station in the appellant’s town, and it noted that the appellant could not identify the information that he had passed on. The Tribunal did not accept that the appellant recruited officials from the Public Security Bureau, the National Security Bureau and the Political Legislation Committee, as his explanation was not plausible and he failed to provide sufficient detail as to how he recruited these officials. The Tribunal also found that the Chinese anti-secession laws, claimed by the appellant to have caused one of the members of his group to have been arrested, did not involve sensitive information but were publicly available.
On 31 October 2005 the appellant filed an application seeking judicial review of the Tribunal’s decision in the Federal Magistrates Court. That application contained a number of grounds, some of which alleged that the Tribunal had failed to comply with s 424A(1) of the Act in a number of respects. It seems that the grounds which related to that section were struck out by the Federal Magistrates Court on 6 February 2006. It seems, further, that no other grounds seeking to invoke s 424A were filed or relied upon by the appellant before the Federal Magistrate and there is nothing in the material before the court which would suggest that the appellant took any step to challenge the striking out of these grounds.
In other respects, in his application for judicial review in the Federal Magistrates Court, the appellant alleged that the Tribunal had made a jurisdictional error by identifying a wrong issue, by ignoring relevant material, and by making erroneous findings. He alleged that the Tribunal had failed to consider core issues such as the special geographic location of the police station and the appellant’s special position in the police. He alleged that the Tribunal had made wrong findings as to the Chinese anti‑secession laws being public in September 2004.
The appellant filed what were described as submissions in the Federal Magistrates Court on 10 March 2006. The document so described did not constitute submissions at all but was in the nature of a covering note for two documents which were produced for the first time by the appellant. The learned Federal Magistrate considered these documents and noted in his judgment that they appeared to support the appellant’s claims to be a refugee. The critical question about them was whether they had been available to the Tribunal. The appellant’s case before the Federal Magistrate was that the Tribunal had made an error of a jurisdictional kind by failing to take into account these documents, which he proposed were of considerable importance in support of his case. I must say that, having read the decision of the Tribunal myself, although questions of fact are not matters for this court to consider, that decision appears to be a very thorough one. It is not evident from that decision that the two documents in question were available for the Tribunal at the time of the hearing or at the time when it made its decision. In his judgment the Federal Magistrate said (at [3]):
“The applicant was somewhat equivocal as to whether the RRT had access to those documents. Initially he said that he had obtained them since the RRT decision. When I pointed out to him that the RRT could not take into account documents that it did not have he asserted that the RRT had indeed got them. He told me that he had provided the documents to his migration agent who had translated them.”
The Federal Magistrate carried out a simple analysis of the way in which the appellant apparently conducted his case before the Tribunal, from which the Federal Magistrate was able to conclude, as he did, that, at the time of the hearing before the Tribunal, the appellant had no knowledge of these documents. He found, as a fact, that the documents were not before the Tribunal at the time it made its decision. Sitting as a court of appeal from the Magistrate, I am entitled to interfere with findings which he made only if I am persuaded that those findings were in error. The appellant has put nothing before me upon the basis of which I could come to any such conclusion in relation to these two documents. On the contrary, I addressed a number of specific questions to the appellant, and he answered me to the effect that the documents had been filed or provided subsequent to 7 September 2005, which was the date when the Tribunal signed its decision. It was, of course, handed down on 29 September 2005 but it is apparent that the decision had been finalised by 7 September 2005. There is, therefore, no basis upon which I would depart from the judgment of the Federal Magistrate with respect to these two documents. Not having been before the Tribunal, it is clear that the Tribunal’s failure to take them into account cannot provide the foundation for any jurisdictional attack upon its decision.
The appellant’s case concerning these two documents was put before me with a deal of sincere concern if not enthusiasm, and I can understand that he might feel that these are pieces of evidence which have been advanced by him but have not been considered. However, the Federal Magistrate found, and I agree, that they were not advanced by him before the body which has the jurisdiction and the power to decide the question which arises under the Convention. The only function which the Federal Magistrate had was to decide whether that body, the Tribunal, exceeded its jurisdiction or failed to exercise its jurisdiction. Nothing which has been put to me in relation to these two documents justifies the conclusion that the Federal Magistrate was wrong in providing a negative answer to that question.
In the appellant’s notice of appeal to this court, the other points taken fall into two categories. The first category is a series of points which allege a failure to comply with s 424A of the Act. These points, although formulated slightly differently in the notice of appeal than they were in the originating document before the Federal Magistrate, essentially cover the same ground as that covered by the paragraphs of the originating application which were struck out. I have no application to reinstate those paragraphs, the Federal Magistrate had no application to reinstate those paragraphs and it has not been put to me that the Federal Magistrate erred in striking them out. Indeed, no such ground is taken in the notice of appeal. In the circumstances, I do not consider it is open to the appellant now to make those s 424A points part of the appeal in this court.
The other category of points in the notice of appeal constitutes, if I may so describe them without doing them any disfavour, a recital of allegations that the Federal Magistrate was wrong and that the Tribunal had been wrong in various ways, not obviously related to jurisdiction. It is sufficient to say that nothing in those points would provide any legitimate basis upon which one might uphold the appeal.
The Federal Magistrate concluded that the decision of the Tribunal was free from jurisdictional error and that it was, therefore, a privative clause decision which was made, by s 474 of the Act, final and conclusive. I agree with that conclusion and it follows that the appropriate order which I should make is to dismiss the appeal.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate:
Dated: 7 August 2006
Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondent: D Watson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 7 August 2006 Date of Judgment: 7 August 2006
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