SZHWH v Minister for Immigration & Multicultural Affairs

[2006] FCA 1182

FEDERAL COURT OF AUSTRALIA

SZHWH v Minister for Immigration & Multicultural Affairs
[2006] FCA 1182

SZHWH v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND ANOR
NSD 736 OF 2006

RARES J
16 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 736  OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHWH
Appellant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	16 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs fixed in the sum of $2,500.

3.The Refugee Review Tribunal be joined as the second respondent and notes that the second respondent, by its counsel, undertakes to file a notice of appearance on behalf of the second respondent, submitting to any order that the Court might make except an order of costs. 

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 736  OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHWH
Appellant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	16 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1. This is an appeal from a decision of the Federal Magistrates Court, SZHWH v Minister for Immigration [2006] FMCA 498. Essentially, the claim is that his Honour erred in failing to uphold the appellant’s submissions that the Refugee Review Tribunal had made the following alleged jurisdictional errors:

   ·a notice under s 424A of the Migration Act 1958 (Cth) should have been given to the appellant informing her of information which the Tribunal took into account which was adverse to her and which formed the reason or part of the reason for which the Tribunal refused her application;

   ·the Tribunal was biased against the appellant;  and

   ·the Tribunal did not believe the appellant. 

2. His Honour carefully considered all of the appellant’s claims.  I see no error in his Honour’s judgment.

3. The Tribunal asked the appellant a number of questions concerning the various claims which she had made to it.  In summary, it formed the view that it was not satisfied that her evidence on any of the bases which she had put to it supported her claim for a protection visa.  The Tribunal said that it did not find the appellant to be credible on some key aspects of her claims and outlined some of the inconsistencies, contradictions and implausibility that led it to conclude that she was not a reliable witness in relation to aspects of those claims. 

4. The Tribunal was not satisfied by what the appellant had put before it to support her claims to a protection visa.   The Tribunal said that the appellant’s claim that she had been a member of the Chinese Democratic Party from September 1998, was one of which it was not satisfied.  I see no reason to conclude that the Tribunal did anything other than assess the appellant’s credibility in that regard.  Assessments of credibility are, as McHugh J said in Re Minister for Immigration;  Ex parte Durairajasingham (2000) 74 ALJR 405 at 417-418 [70], a question for the Tribunal par excellence.

5. Next, the Tribunal said that it was not satisfied that the appellant had attended the Chinese Democratic Party demonstration in December 1998, or that she had been detained, tortured or charged with any offence, or that her husband had paid money for her release as she had claimed.  Again that seems to me to be a finding open to the Tribunal, having regard to its lack of satisfaction with the appellant’s evidence.  Then, the Tribunal said that it was not satisfied that the appellant had been suspected by the Chinese police, as she had claimed, or that they had gone to her shop because of those suspicions, of a connection between her and the Democratic Party.

6. The Tribunal said that it was not satisfied that the appellant was a member of that party as claimed.   The Tribunal found implausible the appellant’s evidence that even though the police had not been to her shop since October 2003 and that at the time of leaving China in March 2005 the police were still suspicious and wanted to cause her problems.  Again, I see no error in the Tribunal’s assessment of the appellant’s credibility, such as gives rise to a right to relief from the court. 

7. The Tribunal also found that the appellant had left China unhindered by the authorities and had had no difficulty in doing so. The Tribunal relied, as it was entitled to do, without giving her notice under s 424A, on country information for that purpose, see s 424A(3)(a).

8. At the end of the day the Tribunal expressed a conclusion that it was not satisfied that the appellant had suffered any serious harm and said that there was no credible evidence upon which it could find that she stands at risk of suffering serious harm in the reasonably foreseeable future if she returned to China.  For that reason the Tribunal was not satisfied that the appellant was a person to whom Australia had protection obligations under the Refugee Convention, and by force of s 65(1) of the Act, it was required to refuse her application for a protection visa.  In SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at 259 to 260 [204]-[208] Allsop J with whom Weinberg J agreed on this point (see 150 FCR at 252, [154] and [155] held that information was that of which one is told or appraised). It is knowledge communicated concerning some particular fact, subject or event (150 FCR at 259 [205]). His Honour went on to say that information did not encompass the Tribunal’s subjective appraisals, thought processes or determinations (150 FCR at 259 [206]).

9. Here, the appellant gave evidence to the Tribunal in support of her claim. The Tribunal did not reach a state of satisfaction on that evidence that her claim should be upheld. Its thought process, in evaluating what the appellant was saying, was not information which required the issue of a notice under s 424A. All the Tribunal was doing was performing the statutory function of assessing the claim on the basis on which the appellant gave evidence to support it.

10. If the Tribunal, on looking at the material which the appellant relied upon in support of the claim, was not satisfied by the material because of its inherent qualities or its evaluation of the material, no notice was required to be given because the Tribunal was not, in that context, relying on information within the meaning of s 424A, but rather, upon its evaluation of the strength of what the appellant was telling it. I see no jurisdictional error in the approach taken by the Tribunal in expressing its conclusions and giving its reasons about the evidence which the appellant gave to it in support of her claim.

11. The appellant had also argued that the Tribunal was biased.  There is not the slightest basis for supporting any such claim. Not only is there no evidence of any conduct of the Tribunal during the course of the hearing to which the appellant can point, the reasons themselves reveal no basis whatsoever for suggesting that the Tribunal did anything other than bring an impartial mind to bear on the assessment on the appellant’s claim in accordance with the requirements of the law.  I reject this ground. 

12. Last, the appellant put that the Tribunal did not believe her and that she would be persecuted because she was a member of the Democratic Party, if she were to return to China.  Again, whether or not the appellant’s claims were creditworthy was quintessentially a matter for the Tribunal.  The court has no power to review the merits of any applicant’s claim for a protection visa.  The Parliament has conferred the obligation to review, in that respect, upon the Tribunal.  It is the function of the courts to determine whether the Tribunal has complied with the procedures laid down by law, being those contained in the Migration Act 1958 (Cth) and the limitations under the Constitution and the common law. And unless the Tribunal has made a jurisdictional error in the way it has gone about the task of assessing the claim of an applicant such as a person in the appellant’s position, courts cannot give their own view of the merits of her claim in substitution for the repository selected by the Parliament for the determination of the claims.

13. I am not satisfied that any of the bases, upon which the appellant has argued her appeal should be upheld, have been made out.  I would dismiss the appeal.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        31 August 2006

Appellant:	In person
Counsel for the Respondent:	J Mitchell
Solicitors for the Respondent:	Phillips Fox
Date of Hearing:	16 August 2006
Date of Judgment:	16 August 2006