SZJDR v Minister for Immigration and Citizenship
[2008] FCA 1212
•7 August 2008
FEDERAL COURT OF AUSTRALIA
SZJDR v Minister for Immigration & Citizenship [2008] FCA 1212
SZJDR v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 573 OF 2008
JESSUP J
7 AUGUST 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 573 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZJDR
AppellantAND:
MINISTER FOR IMMIGRATION & CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
JESSUP J
DATE OF ORDER:
7 AUGUST 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the costs of the first respondent fixed in the sum of $2,900.
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 573 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZJDR
AppellantAND:
MINISTER FOR IMMIGRATION & CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
JESSUP J
DATE:
7 AUGUST 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from a judgment of the Federal Magistrates Court given on 10 April 2008 dismissing an application by the appellant for an order that the respondents show cause why a remedy should not be granted in exercise of that court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in relation to a decision by the Refugee Review Tribunal (“the Tribunal”) signed on 20 June 2007 and handed down on 10 July 2007. In that decision, the Tribunal affirmed an earlier decision of a delegate of the respondent Minister not to grant a Protection (Class XA) Visa to the appellant pursuant to the Act. The second respondent, the Tribunal, has filed a submitting appearance.
The appellant arrived in Australia on 13 March 2005. On 22 March 2005, he applied for a Protection (Class XA) Visa under the Act. The delegate refused that application on 28 April 2005. On 30 May 2005, the appellant applied to the Tribunal for a review of that decision. In a decision handed down on 24 November 2005, the Tribunal affirmed the delegate’s decision. Pursuant to orders made by consent on 6 March 2006 by the Federal Magistrates Court, the matter was remitted to the Tribunal for determination according to law. On 9 May 2006, the appellant was invited to comment on certain information and to attend a hearing and to give oral evidence before the Tribunal, which he did on 20 June 2006. The Tribunal affirmed the decision of the delegate in a decision handed down on 11 July 2006. However, by an order made on 2 February 2007, the Federal Magistrates Court again remitted the matter to the Tribunal to be determined according to law. The appellant attended a further hearing before the Tribunal on 30 May 2007, at which he gave oral evidence with the assistance of an interpreter. On 10 July 2007, the Tribunal handed down its decision to affirm the decision of the delegate.
Before the Tribunal, it seems that the appellant’s case for a protection visa was based upon what he claimed to be a fear of persecution should he be obliged to return to the country of his citizenship, China, because of his involvement in promoting Falun Gong in that country. He claimed that he and his family had been monitored by police since 1997, that he had been detained by police in 1999 because of his involvement in political issues and that he feared detention because of his internet café business, where he had published Falun Gong materials and which he had been obliged to close down in 2004.
Of the two grounds which the appellant advanced in the Federal Magistrates Court in support of his application for judicial review, the second asserted that the Tribunal had failed to consider his claims, in which respect it made reference to a typewritten statement annexed to the application. That statement referred briefly to what the appellant alleged was his experience in China, and then at more length with the forensic history of his attempts to set aside the original decision of the delegate of the Minister. He referred to the circumstance that the matter had been before the Tribunal twice, on each of which occasions the decision of the Tribunal had been quashed, and the matter had been returned to the Tribunal for reconsideration as a result of orders made by the Federal Magistrates Court.
As to the third occasion upon which the appellant had attended a hearing before the Tribunal, the appellant’s statement contained the following:
This time, RRT member was really annoyed again. The first question the member asked me was that I did not want to see you again for the fourth time. Then what he asked me was all about the last two hearings, he did not asked any other questions. I was required to answer definitely. Within 3 hours, I was nearly collapsed. I told them that it had been a long time, sometimes I could not remember the definite time. I told them that I would not have any hope from RRT. They way they asked me questions were just like Chinese police questioned Falun Gong members. My application was refused again. I could not understand why they considered my application like that. However, this time, they still had not notified me in writing the reason or part of the reasons for affirming the decision. My application may be remitted to the Tribunal for reconsideration again. RRT should; not waste the country’s money and people’s time like that. I have already provided the three hearing tapes for your consideration.
Amongst the material which was before the Federal Magistrate, it seems, was a transcription of the tape of the hearing at the Tribunal. In relation to the appellant’s complaint that the Tribunal had failed to consider his claim and was biased, the Federal Magistrate found that there was no unfairness or bias in the decision of the Tribunal. His Honour said:
The Tribunal’s reference to not wanting the matter to come back for a fourth time…does not suggest that the Tribunal was inclined to adopt or follow the conclusions of the previous members, but rather that it was aware that it was obliged to make up its own mind about the credibility of his evidence. I do not consider that this passage provides any support for a claim of actual or apprehended bias under the tests referred to in the High Court in Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425 and Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507.
His Honour continued:
Nor can I find any suggestion of actual or apprehended bias in the Tribunal’s putting to the applicant various inconsistencies between the evidence he told it and what he had said at previous hearings. I also do not accept that the applicant was prevented from giving this Tribunal a full account of the reasons why he claimed to fear persecution in China based on his past history. In my opinion, the transcript shows to the contrary. I am unable to detect any particular area of unfairness in the questioning of the Tribunal, particularly since the applicant has not referred me to any such passage.
In relation to the appellant’s claim that the Tribunal did not consider all of his claims, the Federal Magistrate said:
No particular deficiency has been pointed to by the applicant. It is correct that the Tribunal did not discuss the fine details of every element in the various histories previously presented to earlier Tribunals, but the extent to which those histories were still being maintained would have been very unclear to this Tribunal member. In my opinion, the present Tribunal’s reasoning and its findings sufficiently addressed all the elements of the applicant’s history which he appeared to be pressing, and which might appear to survive the inconsistencies of his evidence. I am therefore not satisfied that there was any element of his claims which were left outstanding and was not addressed by this Tribunal.
The appellant’s Notice of Appeal in this court filed on 24 April 2008 includes three grounds, but only one of them was pressed in the appellant’s submissions this morning. The burden of those submissions was that the Tribunal was so influenced by the previous rejections of the appellant’s claim for refugee status as to have, in effect, assumed that that ought to be the outcome of the case and not given proper attention to his present application for review on its merits.
A similar submission was considered by the Federal Magistrate and rejected. I drew that circumstance to the appellant’s attention this morning and invited him to address me with respect to the way in which the Federal Magistrate had dealt with the point. He declined to do so. He seemed to have been of the impression that since he succeeded twice on jurisdictional grounds in the Federal Magistrates Court, he must necessarily have been entitled to expect similar success on the third occasion. As I attempted to explain to him, and as the Federal Magistrate himself pointed out in his reasons, the Federal Magistrates Court does not have jurisdiction to decide whether the appellant is entitled to refugee status under the Convention or the Act, and does not have jurisdiction to decide the substantive questions of his own credibility upon which the most recent application before the Tribunal substantially turned. The power and jurisdiction of that court, as his Honour pointed out, and as I pointed out to the appellant, is confined to considering whether the Tribunal had fallen into jurisdictional error.
In cases of this kind, and as it appears in this particular case on the previous two occasions, jurisdictional error may often arise from the failure of the Tribunal to follow mandatory procedures laid down in the Act. The fact that it may have done so on previous occasions by no means justifies the conclusion that it is likely to do so on the present occasion. Indeed, the very point of sending the matter back to the Tribunal for reconsideration was that it should do regularly what it previously had done irregularly. That it should arrive at the same conclusion on the merits each time the matter went before it is in no sense inconsistent with the fact that, on two previous occasions, it had been found to have fallen into jurisdictional error.
The appellant has put nothing before the court, and nothing appears to the court, such as would sustain the conclusion that the Federal Magistrate erred in the way in which his Honour disposed of the appellant’s application. I propose therefore 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: 18 August 2008
Counsel for the Appellant: The appellant appeared in person Counsel for the Appellant: Ms K.C. Morgan Solicitor for the Appellant: Clayton Utz
Date of Hearing: 7 August 2008 Date of Judgment: 7 August 2008
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