SZIOG v Minister for Immigration & Citizenship

[2007] FCA 538

FEDERAL COURT OF AUSTRALIA

SZIOG v Minister for Immigration & Citizenship [2007] FCA 538

SZIOG v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1945 OF 2006

BENNETT J
7 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1945 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIOG
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	7 MARCH 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent is changed to the Minister for Immigration and Citizenship.

2.Leave to rely on grounds of appeal not raised before the Federal Magistrate is refused.

3.The appeal is dismissed.

4.The appellant is to pay the first respondent’s costs.

5.Leave is granted to the first respondent to file evidence in support of an application for fixed costs by forwarding such evidence to Bennett J’s chambers and serving such evidence on the appellant.

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 1945 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIOG
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE:	7 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Federal Magistrates Court to dismiss an application for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (SZIOG v Minister for Immigration & Anor [2006] FMCA 1450). The appellant claimed to have a well-founded fear of persecution in China by reason of her practice of Falun Gong. The Tribunal did not accept her claims. As recorded in the findings and reasons of the Tribunal, it questioned her in some detail about Falun Gong and the practice of it. It listed a number of instances of her response to questions and the information she gave to the Tribunal about Falun Gong. The Tribunal concluded that her responses individually would not have led it to make an adverse finding about her credibility. Cumulatively, however, the Tribunal said that they led it to conclude that the appellant was not a credible witness and that she had invented the claim that she was a Falun Gong practitioner in China.

2. By reason of that conclusion, the Tribunal did not accept that the appellant was a Falun Gong practitioner in China or that she had experienced problems in China as claimed. The Tribunal did accept that the appellant had practised Falun Gong in Australia. It was unable, however, to be satisfied that she had engaged in those activities other than for the sole purpose of strengthening her refugee claims. Accordingly, the Tribunal disregarded the appellant’s conduct in Australia in accordance with s 91R(3) of the Migration Act1958 (Cth) (‘the Act’).

3. The appellant was represented by counsel in the Federal Magistrates Court and asserted in her application in that court that the assessment of credibility by the Tribunal was so “harsh” as to give rise to a finding of jurisdictional error.  Federal Magistrate Smith considered the Tribunal’s reasoning and was not satisfied that the Tribunal had failed to appreciate any relevant matters.  In particular, his Honour was not satisfied the Tribunal had failed to appreciate the matters referred to by the Full Court in SAAKv Minister for Immigration & Multicultural Affairs (2002) 121 FCR 185 or by Kirby J in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [73]. At [22], Smith FM stated:

   ‘It was [the task of the Tribunal] to attempt to assess the credibility of [the appellant’s] history in circumstances where she presented minimal corroboration.  The Tribunal's finding is not a bald finding of credibility without reasons provided, and its reference to impressions formed from the manner and content of [the appellant’s] answers was, in my opinion, open to the Tribunal.’

4. His Honour concluded that there was no irrationality in the Tribunal’s reasoning to demonstrate that it failed to exercise its jurisdiction according to law (at [22]).  His Honour concluded that he was not satisfied that the Tribunal’s adverse conclusion as to credibility was not open to it on the evidence (at [23]) and dismissed the application.

   The appeal to this Court

5. His Honour did not state in his reasons whether he proceeded to dismiss the application under r 44.12(1)(a) or (c) of the Federal Magistrates Court Rules2001 (Cth). The parties have proceeded on the understanding that his Honour’s judgment was final rather than interlocutory and I am satisfied, on my reading of his Honour’s decision, that it is appropriate to proceed on that basis.

6. The appellant appears in person assisted by an interpreter.  Her notice of appeal asserts, in summary:

   (1)A failure to comply with s 424A of the Act.

   (2)Bias on the part of the Tribunal and a failure to believe that the appellant participated in Falun Gong activities in China.

   (3)The Federal Magistrates Court did not carefully consider her arguments and refused her application.

7. As to the first ground, the decision of the Tribunal was based on an adverse credibility finding. That finding was based, in turn, upon oral evidence and other information provided by the appellant to the Tribunal at the hearing. The Tribunal also relied upon independent country information. The Tribunal was not obliged to give such information to the appellant by reason of subss 424A(3)(a) and (b) of the Act. The appellant has not pointed to any information that the Tribunal was obliged to give her in order to comply with s 424A(1) of the Act and none is evident from the reasons of the Tribunal. The appellant has not made out this ground of appeal.

8. The second ground, as stated in the notice of appeal is:

   ‘The Tribunal had bias against me and did not believe that I had participated in any Falun Gong activities in china (sic).  The decision to refuse my application was not based on evidence, but assumption of the officer.’

9. To the extent that the appellant challenges the fact-finding of the Tribunal and wishes to raise for consideration the merits of the decision, that does not found jurisdictional error.  When asked to provide further information, the appellant told the Court that the bias of the Tribunal was that it found that she did not have sufficient knowledge of Falun Gong and was not a Falun Gong practitioner.  Failure to believe the appellant does not of itself give rise to a finding of bias. 

10. The appellant also asserted that the Tribunal did not reasonably assess her case.  When asked for further particulars of that assertion, the appellant said that the Tribunal did not ask her detailed questions nor ask her directly about her knowledge of Falun Gong and that the Tribunal did not acknowledge that she was a Falun Gong practitioner.  It is apparent from the Tribunal’s reasons that it did ask the appellant what it meant to be a Falun Gong practitioner.  Indeed, the Tribunal’s reasons record that it questioned her on various aspects of the practice of Falun Gong.

11. The Tribunal was not obliged to make the case for the appellant.  There is nothing in the Tribunal’s reasons to indicate that it had a closed mind.  Indeed, the Tribunal’s reasons suggest that it attempted to elicit as much information from the appellant as possible.  There is no evidence before me to support an allegation of bias or apprehension of bias.  This Court has stated repeatedly that allegations of bias are serious and must be supported by evidence.  There is nothing to indicate to me that the mind of the Tribunal was not open to persuasion.

12. The final ground of appeal complains that the Federal Magistrates Court did not consider the appellant’s arguments.  The appellant was not able to point to any ground or argument put to his Honour that was not considered.  It is apparent from his Honour’s reasons that he gave careful consideration to the arguments that were put to him.

13. It follows that none of the grounds of appeal have been made out.

14. The Minister points out that the grounds of appeal now raised were not grounds relied upon in the Federal Magistrates Court and opposes leave being granted to rely upon them now.  For the reasons I have given, none of the grounds of appeal have any prospect of success.  Accordingly, leave to raise the grounds of appeal should be refused.

    Conclusion

15. The appeal should be dismissed.  The appellant is to pay the first respondent’s costs.

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

Associate:

Dated:        16 April 2007

The Appellant appeared in person.

Solicitor for the First Respondent:	Clayton Utz
Date of Hearing:	7 March 2007
Date of Judgment:	7 March 2007