SZHNC v Minister for Immigration and Citizenship

[2008] FCA 917

FEDERAL COURT OF AUSTRALIA

SZHNC v Minister for Immigration and Citizenship [2008] FCA 917

Migration Act1958 (Cth)

Minister for Immigration & Multicultural & Indigenous Affairsv NAMW (2004) 140 FCR 572
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Minister v NAMW (2004) 140 FCR 572
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 231 ALR 412; [2006] FCAFC 61
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration and Multicultural Affairs (2004) 144 FCR 1; [2004] FCAFC 263

SZHNC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 217 OF 2008

REEVES J
20 JUNE 2008
DARWIN

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 217 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHNC
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE OF ORDER:	20 JUNE 2008
WHERE MADE:	DARWIN

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
NEW SOUTH WALES DISTRICT REGISTRY	NSD 217 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHNC
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE:	20 JUNE 2008
PLACE:	DARWIN

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal against the judgment of Federal Magistrate Smith delivered ex tempore on 31 January 2008, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal’s decision, handed down on 3 July 2007, affirmed the decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

BACKGROUND – SUMMARY OF FACTS

1. The appellant is a citizen of the People’s Republic of China (‘China’).  He was born in China on 24 June 1965.  He arrived in Australia on 27 February 2005.   A month later, on 29 March 2005, he lodged an application for a protection visa with the Department of Immigration and Citizenship.  A delegate of the first respondent refused the appellant’s application on 26 April 2005 and the appellant applied to the Tribunal as originally constituted (‘the previous Tribunal’) for a review of that decision on 31 May 2005.

2. The previous Tribunal held a hearing on 6 September 2005 and received oral evidence from the appellant.  On 8 September 2005, the appellant submitted a statutory declaration to the previous Tribunal in support of his claims.  On 4 October 2005 the previous Tribunal handed down its decision affirming the decision of the delegate.  The appellant then sought judicial review of that decision in this Court.  By consent, that decision was quashed by Justice Marshall on 9 March 2007 and remitted to the Tribunal to be reconsidered according to law.  There is a note on the Order of 9 March 2007 which reads:

   ‘The First Respondent concedes that the decision of the [Tribunal] is affected by jurisdictional error in that the [Tribunal] failed to give the Appellant notice of a live issue that is, a person of the Appellant’s profile would not be considered by the Chinese authorities to have planned an anti-government demonstration’.

3. In a written statement attached to his visa application, the appellant claimed that he had had to leave China to avoid religious persecution from the Chinese authorities.  Specifically, he claimed to have been a member of an underground Christian church and to have been detained for his religious activities in 2002.  Further, he claimed that in 2004 ‘police came to arrest us, accusing us of attending illegal activities’.  However, when the appellant appeared before the previous Tribunal, he said that his initial application had been prepared by an agent and that, without his knowledge, she had fabricated the claims made in the statement about fears of persecution based on religious grounds.  Rather he said his fears of persecution were based on political grounds arising out of his role in an industrial dispute in China.   

4. He described that role in evidence before the previous Tribunal and in his statutory declaration submitted on 8 September 2005.  He said that he had assisted an acquaintance (‘Mr Wu’s wife’) to petition the Secretary of the Communist Party in Tianjin City and had helped to organise protests around the Secretary’s office from 2004.  The appellant did not allege that he had been directly involved in this political action.  According to the appellant, Mr Wu’s wife revealed his involvement to Chinese authorities which resulted in him having ‘been wanted by the PSB since then’ and his wife having been ‘questioned by the PSB for about four times from March to April 2005’. 

5. The appellant gave evidence before a newly constituted Tribunal on 5 June 2007.  It is the decision of the newly constituted Tribunal (‘the Tribunal’) that has ultimately led to the present appeal before this Court.  At the hearing in 2007, the appellant submitted a witness statement detailing, among other things, the circumstances of the agent preparing the fabricated statement attached to his original visa application.  He also submitted an Amnesty International article entitled ‘Labour unrest and the suppression of rights to freedom of association and expression’.

THE TRIBUNAL’S DECISION

1. The Tribunal set out the appellant’s claims and evidence at some length in its reasons.  First it summarised the claims made in his protection visa application, then it summarised the claims and evidence he provided to the previous Tribunal, including the statutory declaration submitted after the hearing on 8 September 2005.  Finally, the Tribunal summarised the claims and evidence the appellant gave at the hearing on 5 June 2007, the further material he had submitted and the country information the Tribunal had relied upon.

2. In the ‘findings and reasons’ section of its decision, the Tribunal accepted that the appellant had resiled from the claims of religious persecution his agent fabricated in support of his visa application and instead proceeded on the basis of the claims the appellant made at each Tribunal hearing and material he had submitted to the Tribunal.  The Tribunal did not find the standard of interpreting at the hearing to be unsatisfactory, despite allegations in the appellant’s statutory declaration about mistakes having been made.

3. More generally, the Tribunal did not find the appellant to be a credible witness, finding several aspects of his claims to be implausible.  In particular, the Tribunal found his assertion that ten protests had been held within one month without any action being taken by the authorities, to be in conflict with country information that the Chinese authorities suppressed such demonstrations ‘swiftly and often with force’.  The Tribunal also found it implausible, based upon country information, that a person in the position of the Tianjin Chinese Communist Party (CCP) Secretary would move to a secret location to carry out his official duties.  The Tribunal did not accept any of the appellant’s claims involving petitioning the CCP Secretary and stated that it ‘was difficult to believe that the authorities would consider [the appellant] was involved in organising protests if he only told Mr Wu’s wife about the location of the CCP secretary’ and that it seemed unlikely that she would tell the authorities that the appellant was an organiser. 

4. For these reasons, the Tribunal did not accept that the appellant had come to the adverse attention of the local authorities, it did not accept that the appellant ‘had lost his job in 1999 for a Convention reason’, and it therefore did not accept that he held a well-founded fear of persecution for a Convention-related reason.

THE FEDERAL MAGISTRATE’S DECISION

1. The appellant filed an application for judicial review of the Tribunal’s decision in the Federal Magistrates Court on 27 July 2007.  His application raised the following grounds of review:

   (1)There was an error of law in the Tribunal’s decision constituting a jurisdictional error; and

   (2)There was procedural error in the Tribunal’s decision constituting an absence of natural justice.

2. The particulars given in support of these grounds essentially allege that the Tribunal failed to comply with s 424A(1) of the Migration Act 1958 (Cth) (‘the Act’), by not bringing to the appellant’s attention inconsistencies between his evidence and the country information and allowing him to comment on them.

3. The appellant filed submissions on 9 October 2007, which raised a further argument to the effect that the Tribunal’s reasoning was incorrect insofar as it assessed the likely reaction of the Chinese authorities to protest activity.

4. Federal Magistrate Smith summarised the Tribunal’s decision, noting that it had found many aspects of the appellant’s claim to be implausible, or not credible. His Honour considered that the appellant’s application for judicial review effectively relied upon one ground: a breach of s 424A(1) of the Act. He noted that this breach was said to have occurred because the Tribunal did not put to the appellant the inconsistencies between his evidence and the country information which the Tribunal had relied upon as a part of its reasoning. His Honour concluded that this ground involved ‘a misconception of the effect of s 424A(1)’ in that ‘[t]he adverse country information which was relied upon by the Tribunal did not itself give rise to an obligation under s424A(1): (see Minister for Immigration & Multicultural & Indigenous Affairsv NAMW (2004) 140 FCR 572)’. His Honour went on to refer to SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18] as authority for the proposition that a Tribunal is not obliged to put to an appellant for comment its reasoning processes – thought they may make use of country information - when assessing the appellant’s evidence.

5. Turning to the appellant’s argument against the Tribunal’s use of country information, his Honour found himself unable to accept that the Tribunal’s adverse conclusions based on country information were not open to it as a matter of law.   His Honour found that the appellant’s criticisms went only to the merits of the Tribunal’s reasoning and did not establish the Tribunal had ‘displayed such irrationality as could allow an inference of jurisdictional error’, referring to Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59. Accordingly his Honour was not satisfied the Tribunal’s decision was affected by jurisdictional error and he dismissed the appellant’s application.

GROUNDS OF PRESENT APPEAL

1. The Notice of Appeal filed in this Court on 21 February 2008, raises two grounds.  They can be summarised as follows:

   1.The learned Federal Magistrate misconstrued the appellant’s submissions about s 424A(1) of the Act - the submissions related to the inconsistencies between the appellant’s evidence and the independent country information, not to the country information itself. The Tribunal’s decision was partly based upon those inconsistencies and the Tribunal was therefore obligated to put them to the appellant for comment; and

   2.The Federal Magistrate erred in finding that no jurisdictional error arose because his Honour failed to consider that the Tribunal had misconstrued the country information.   

THE CONTENTIONS

1. At the hearing of the appeal before me, the appellant appeared unrepresented.  He was assisted by an interpreter.  Mr Quinn appeared for the first respondent.

2. The appellant essentially repeated the material contained in his Notice of Appeal. In summary, he submitted that the Tribunal’s decision was based upon inconsistencies between his evidence and the country information and those inconsistencies were ‘information’ that the Tribunal should have put to him for comment. By not doing so, it breached s 424A of the Act.

3. Mr Quinn relied upon the written submissions filed previously.  The following is a summary of those written submissions:

   (1)The learned Federal Magistrate correctly concluded that the Tribunal was not obliged to put to the appellant its reasoning processes relating to inconsistencies between the country information and the appellant’s own evidence because that did not constitute ‘information’ for the purposes of s424A(1);

   (2)The Tribunal assessed the country information and made findings about the appellant’s claims based upon its assessment of that information which findings were open to it on the evidence.  The Tribunal made the appellant aware of the concerns it had about the plausibility of his evidence and gave him an opportunity to comment on those concerns.  The Tribunal’s findings on these issues were therefore findings of fact that were not open to review; and

   (3)The appellant had therefore not shown any appellable error on the part of the learned Federal Magistrate nor, it follows, any jurisdictional error on the part of the Tribunal. 

CONSIDERATION

1. Ground (1) of the Notice of Appeal appears to raise two errors: the Tribunal’s alleged non-compliance with s424A(1) of the Act and the Tribunal’s alleged non-compliance with a separate obligation to put to the appellant any issue critical to its decision and to allow him to comment on it.

2. In my view the former allegation must be rejected. This is so because there is clear High Court authority, referred to by the Federal Magistrate, that the Tribunal’s mental or reasoning processes relating to its use of country information in assessing the appellant’s evidence (for example, in identifying inconsistencies between the two) is not ‘information’ that the Tribunal is required to provide to the appellant in writing for comment under s 424A(1) of the Act.

3. The latter allegation must also be rejected. It appears to raise a common law requirement distinct from the requirements in s 424A, or other provisions of the Act, to afford procedural fairness to the appellant by putting such issues to him: see for example Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572 at [140]-[145] and the authorities referred to therein. However, since s 422B was introduced into the Act in 2002, it is clear that the requirement for the Tribunal to abide by the common law ‘natural justice hearing rule’ (but not the ‘bias rule’) has been excluded from the Act: see Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 231 ALR 412; [2006] FCAFC 61 at [66] and [67]; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [7].

4. Ground (2) alleges that the Tribunal committed jurisdictional error by misconstruing the country information.  The appellant has detailed four different aspects of the Tribunal’s decision where he says that this has occurred.  All of them relate directly or indirectly to the Tribunal’s rejection of the appellant’s evidence as not credible or implausible, and criticise the Tribunal’s assessment of the country information relating to:

   (a)the suppression of protests by the Chinese authorities;

   (b)the way the Chinese authorities dealt with petitions submitted at protests; and

   (c)the question whether it was common for senior Chinese officials to move to secret locations to avoid public protests.

5. The assessment of the appellant’s evidence and the other material properly before it, including country information and any resulting assessment of the appellant’s credibility, are a crucial part of the Tribunal’s fact finding role.  If the Tribunal were to make an error in the course of carrying out that role, it would not amount to jurisdictional error unless the error related to a jurisdictional fact or involved a substantive or procedural error of law: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 – 352 and NABE v Minister for Immigration and Multicultural Affairs (2004) 144 FCR 1; [2004] FCAFC 263 at [52].

6. No such error has been identified in this case.  To the contrary, the appellant has merely pointed to aspects of the Tribunal’s findings that are adverse to his credibility.  Such findings are classically findings of fact.  In my view, the appellant has failed to identify any error on the part of the Tribunal that could amount to jurisdictional error.  This ground must therefore be rejected.

ORDERS

1. For these reasons this appeal will be dismissed.

2. I will hear the parties on the question of costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:

Dated:        20 June 2008

Counsel for the Appellant:	In person
Counsel for the First Respondent:	Mr Quinn
Solicitor for the First Respondent:	DLA Phillips Fox

Date of Hearing:	13 May 2008
Date of Judgment:	20 June 2008