SZILO v Minister for Immigration and Citizenship

[2007] FCA 1361

FEDERAL COURT OF AUSTRALIA

SZILO v Minister for Immigration & Citizenship [2007] FCA 1361

SZILO v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 580 OF 2007

DOWSETT J
30 JULY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 580 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZILO
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	30 JULY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.the appeal be dismissed; and

2.the applicant pay the first respondent’s costs of the appeal.

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 580 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZILO
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE:	30 JULY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a federal magistrate declining to review a decision of the Refugee Review Tribunal handed down on 31 October, 2006.  That decision affirmed a decision of the first respondent’s delegate to refuse the present applicant’s application for a protection visa. 

2. The delegate’s decision had previously been reviewed by the Refugee Review Tribunal and affirmed.  That decision was set aside by a federal magistrate and the matter remitted to the Tribunal.  Its decision after reconsideration of the matter was the subject of the magistrate’s decision under appeal. 

3. The present applicant is a citizen of the Peoples’ Republic of China.  He arrived in Australia on 11 August, 2005 and applied for a protection visa on 8 September.  In effect the applicant claimed to fear persecution in China because he had been a public servant in an office of the Taxation Bureau and had organised protests and demonstrations about government tax policy including, in particular, the corrupt application of tax moneys.

4. The Tribunal accepted that the applicant had entered Australia on a false passport.  This appears to have caused some concern at the first hearing in the Refugee Review Tribunal.  In the decision with which I am presently concerned the Tribunal said:

   ‘Given that the Applicant obtained a falsified passport in another name, which was of sufficiently high quality to pass inspection by the Chinese authorities when he left China and by the Australian authorities when he entered Australia, there is no reason in principle why he could not also have obtained falsified identification the documents (sic) which show that his name is [SZILO].  His ability to change his identity in this way raises doubts as to whether he is [SZILO] or another name or some other person entirely.  However I have given him the benefit of the doubt by accepting that he is a Chinese citizen whose name is [SZILO] as he claims.  I also accept that in China he lived in a Xikeng Village, Longtien town, Fuqing City, and that he was an employee of the Fuqing City local Taxation Office.’

5. The Tribunal considered the evidence and rejected the applicant’s claims concerning his activities in China, largely upon the basis of its assessment of him as a witness, particularly having regard to aspects of the information he provided orally which had not previously been provided, and because it considered some aspects of his evidence to be improbable.  It is not necessary that I discuss those aspects of the evidence.

6. Before making its decision the Tribunal summarised various aspects of the evidence with which it was dissatisfied and provided that summary to the applicant for his comment.  He responded to this comment in a statutory declaration.  The Tribunal then proceeded to make its decision, rejecting many of his explanations concerning the unsatisfactory aspects of the evidence to which his attention had previously been drawn.

7. In the Magistrates Court the applicant asserted that the Tribunal had erred in law and committed procedural errors, all of which amounted to jurisdictional error and/or the denial of natural justice.  He also alleged a reasonable apprehension of bias.  This appears to have been based upon observations by the Tribunal made concerning his passport.  He also asserted that the Tribunal had not carried out certain investigations which it might have done, and that it was biased against him in refusing to accept his explanations as to why he had not given an accurate account of certain aspects of his case.

8. He queried the motivation of the Tribunal in sending him the letter setting out its concerns about his evidence and asserted that in his response to the letter he had raised new material about which, for some reason, the Tribunal ought to have given him a further opportunity to comment.  He said that the Tribunal had misunderstood his application, failed to consider an essential claim, asked itself a number of wrong and irrelevant questions and failed to identify and consider the relevant issues to be determined.

9. The magistrate dealt with all of these matters in an entirely orthodox way.  In his notice of appeal the applicant asserts simply that the magistrate erred in law and was wrong in finding that the Refugee Review Tribunal had acted properly.   He gave particulars as follows:

   ‘The Tribunal failed to consider my review application properly and fairly; and I strongly believe that the Tribunal’s decision has included a reasonable apprehension of bias.

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

   In deciding my application the Tribunal has misstated or misunderstood the information or evidence that I have given to the Tribunal.’

10. In oral submissions today, however, the applicant limited himself to two primary grounds, the first being an allegation of bias or apprehended bias, and the second being that the Tribunal did not investigate his claims as it should have done.  The question of bias was dealt with below in a somewhat confused way.   There appears to have been a failure to distinguish between actual and apprehended bias.  Any such confusion may have reflected confusion in the applicant’s claimed concerns.  Before me the basis for his allegation of bias or apprehended bias was that the Tribunal did not accept that he was who he claimed to be.  That may have been the position adopted by the Tribunal in its first decision, but it is not the position adopted in the second decision.  The Tribunal proceeded upon the basis that he was, indeed, the person he claimed to be, although it must be conceded that its acceptance of his claim was somewhat qualified.  Such qualification could not, itself, give rise to an apprehension of bias.  It was common ground that his passport was forged, and apparently, a reasonably good forgery.  One can hardly quibble with the fact that the Tribunal identified the possibility that a person who could obtain such a forgery might also have access to other forged documents.  It may have been better had the Tribunal not mentioned its reservations, but I do not think that a fair-minded observer would consider that it suggested bias. I cannot see that it could lead to a finding of bias or perceived bias.  It was a reasonable comment on the evidence. 

11. It may be that the applicant also asserts bias, based on the way in which his application was otherwise determined.  Again, that is to overlook the fact that the Tribunal dealt with the matter after considering the evidence, or in the course of so doing.  The reasons may reflect scepticism about the applicant’s claim, but that was the Tribunal’s view after considering the material before it.  It cannot be a basis for a finding of bias or apprehended bias that the Tribunal came to an adverse view of the applicant as a witness.

12. As to the complaint that the Tribunal did not investigate the matter, a dissatisfied party may often point to steps which could have been taken but were not.  The Tribunal’s task is primarily to address the case put before it by the relevant applicant.  It may carry out its own investigations.  In some circumstances it may be obliged to do so, but that does not mean that in all cases it is obliged to conduct all possible investigations. 

13. As to the assertion in the notice of appeal that the Tribunal mis-stated or misunderstood the information or evidence before it, in the absence of any specific complaints I am unable to take the matter further.  In any event a reading of the Tribunal’s reasons suggests that it identified clearly the evidence and commented upon it.  The magistrate dealt in detail with those reasons.  It is not necessary that I examine them further, given the applicant’s failure to identify any specific matters of concern.

14. In the notice of appeal the applicant also refers to s 424A of the Act.  The magistrate dealt with this question.  Clearly, the Tribunal fulfilled its obligations pursuant to that section.  The applicant really seeks the opportunity to make comments concerning his own comments.  No provision of the Act compels that course. 

15. In the circumstances the appeal must be dismissed.  The applicant is to pay the first respondent’s costs of the appeal.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:       29 August 2007

Counsel for the Applicant:	The applicant appeared in person
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	The second respondent did not appear
Date of Hearing:	30 July 2007
Date of Judgment:	30 July 2007