SZJOB v Minister for Immigration and Citizenship

[2007] FCA 1092

FEDERAL COURT OF AUSTRALIA

SZJOB v Minister for Immigration and Citizenship [2007] FCA 1092

MIGRATION – obligation of Refugee Review Tribunal to accord procedural fairness – whether Tribunal complied with s 424A(1) and s 425 of the Migration Act 1958 (Cth)

Held: Appeal dismissed.

Migration Act 1958 (Cth) ss 424A, 425

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 followed
NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 cited
Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Straight Islander Affairs (2000) 103 FCR 539 referred to
Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 referred to
Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168 applied
Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 followed
SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 referred to

SZJOB v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 664 OF 2007

COWDROY J
18 OCTOBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 664 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJOB
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	18 OCTOBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The Appellant pay the costs of the First Respondent in the sum of $3000 pursuant to Order 62 Rule 4(2)(c) of the Federal Court Rules 1979 (Cth).

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 664 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJOB
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE:	18 OCTOBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals from a decision of Federal Magistrate Smith delivered on 27 March 2007. The appellant applied for a protection visa on 24 April 2006 and on 30 May 2006 a delegate of the extant Minister for Immigration and Multicultural Affairs (‘the Minister’) refused the application. The appellant sought review of that decision by the Refugee Review Tribunal (‘the Tribunal’). On 21 September 2006 the Tribunal delivered its reasons for upholding the decision of the Minister. By application dated 20 October 2006 the appellant sought judicial review of such decision in the Federal Magistrates Court. Subsequently, on 12 January 2007 an amended application was filed. That application was determined by Smith FM and such decision is the subject of this appeal.

   BACKGROUND

2. The appellant is a citizen of the People’s Republic of China (‘the PRC’) who arrived in Australia on 28 March 2006. The appellant is married with one son. Both his wife and son continue to live with his parents in the family home in the PRC.

3. The appellant claims to have a well-founded fear of persecution on the basis of his Christian beliefs and of his membership of an underground and unregistered Christian church in the PRC. He claims to have commenced attending a Bible study group in 1999 and to have been baptised at the end of 2000. He claims that the local government coerced his church to register which resulted in their subsequent gatherings taking place surreptitiously.

4. The appellant’s claims rely substantially upon an alleged incident of 15 January 2006 when approximately ten policemen raided and arrested everyone at the study group attended by the appellant. The appellant alleges that he was beaten, detained at the police station and later taken to a detention camp on 16 January 2006. The appellant claimed that his father paid a bribe for his release which eventuated after 8 days of detention. The appellant alleges that after his release he was warned by the police that they would beat him if he caused trouble. The appellant claimed to have lost his job as a contract painter because his clients were warned not to contact him. The appellant claimed that he was regularly monitored by the local police for the purposes of forcing him to register as a Christian.

5. The appellant attended a hearing before the Tribunal on 18 August 2006 and gave oral evidence with the assistance of a Mandarin interpreter. During such hearing the appellant relied upon a letter from a priest of a Christian church in the PRC who had allegedly baptised the appellant (‘the letter’).

   THE DECISION OF THE TRIBUNAL

6. The Tribunal considered the letter but from its content and style, was unable to place any weight on it as evidence of the appellant’s claimed Christianity. The Tribunal noted that the appellant’s evidence demonstrated familiarity with the conditions of Christians in Fujian which was consistent with country information but concluded that such knowledge was not indicative of the appellant’s Christianity. The Tribunal’s doubts concerning the appellant’s sincerity were reinforced by the appellant’s lack of contact with Christians since his arrival in Australia and the Tribunal’s finding that the appellant was vague and evasive concerning his activities in Australia. The Tribunal further noted the anomaly between the appellant’s possession of a driving licence, mobile telephone, accommodation and employment, and his claims that whilst he wanted to join a Christian congregation, he was unable to find one. The Tribunal found that it was implausible that he was unable to find such a church in light of his other achievements since arriving in Australia. The Tribunal also found the appellant’s claims that he would rely on Christians in the PRC to send him Bibles were implausible.

7. The Tribunal concluded:

   In light of the applicant’s very limited knowledge of Christianity and his lack of demonstrated efforts to make contact with Christians in Australia, the Tribunal rejects his claim to have any interest in or commitment in that faith. It accepts that he may have observed some Christians in Fujian, but rejects that he has had any personal involvement with Christian communities there, or that he will be perceived by anyone as a Christian.

   It follows that the Tribunal does not accept the applicant’s claim to have suffered past harm for reason of his now-dismissed Christianity. Nor does it accept that he will have any interest in Christianity if he returns to China. The material before the Tribunal does not reveal any other factors that might establish a real chance of Convention-related persecution.

8. The Tribunal also stated that it had considered his claims individually and cumulatively and found there was no real chance he would face serious harm if he returned to the PRC. Accordingly the Tribunal upheld the Minister’s decision.

   DECISION OF THE FEDERAL MAGISTRATE

9. By his Amended Application for judicial review the appellant claimed that there was jurisdictional error and an absence of natural justice in the findings of the Tribunal. The appellant claimed that the Tribunal breached s 424A(1) of the Migration Act 1958 (Cth) (‘the Act’) in relation to his knowledge of Christianity, the letter, and the finding as to his ability to manage the other parts of his life. The appellant also claimed that the Tribunal failed to comply with its obligations under s 425 of the Act because at the hearing he was frequently interrupted, misunderstood, ‘given strong pressure’ and that the Tribunal failed to indicate the issues to him.

10. Smith FM found that the ground relating to s 424A of the Act had no merit because the Tribunal drew upon information given by the appellant at the hearing in its reasoning. Such information was exempted by s 424A(3)(b) of the Act. As to the claim that the Tribunal failed to comply with s 425 of the Act, his Honour was not satisfied that the appellant was frequently interrupted or pressured or misunderstood during the Tribunal hearing, nor that the appellant was not apprised of the issues. Accordingly his Honour found that no breach of s 425 of the Act existed. Smith FM also found that the appellant’s other submissions only challenged the factual assessments made by the Tribunal and did not provide any basis for establishing jurisdictional error. Smith FM accordingly dismissed the application.

    APPEAL TO THIS COURT

11. The appellant claims that Smith FM erred in law and was wrong in finding that the Tribunal had acted properly in its findings. Particulars provided in a Notice of Appeal filed on 17 April 2007 assert that the Tribunal failed to comply with ss 424A(1) and 425 of the Act.

12. The appellant appeared at the hearing and made oral submissions with the assistance of an interpreter. He claimed that Smith FM did not believe the statements which he had made before the Tribunal. By way of example he stated that the letter was not accepted, and that the interpreter could not interpret various concepts including that of the ‘Trinity’.

    FINDINGS

13. The Tribunal was unable to place any weight on the letter relied upon by the appellant as evidence of his claimed Christianity. The Tribunal’s finding in relation to the minimalist nature of the letter together with its ‘dubious provenance’ was a finding of fact which was open to the Tribunal to make.

14. As to the appellant’s claim of difficulty in translation at the Tribunal hearing, the appellant submitted that he had requested and received two identical tapes of the Tribunal hearing which recorded only a portion of the hearing. However, the appellant has taken no steps to obtain the recording of the remainder of the hearing and does not seek to rely upon the recording that he has received. The appellant also has not tendered the transcript of the Tribunal hearing.

15. In NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 the Full Court observed at [21] that the Federal Magistrate whose decision was being challenged had no transcript of the Tribunal’s hearing before him and there was ‘simply no basis upon which his Honour could properly have made this finding’ of mis- interpretation. In Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168 the Full Court considered a challenge to the accuracy of an interpreter’s translation and observed that the appellant had not presented to the Court ‘any material attesting to the inaccuracy of the interpretation provided, nor any review by a competent interpreter of an audio recording of the Tribunal’s proceedings’.

16. In the present proceedings nothing has been provided by the appellant to show any inaccuracy in the translation service, other than his assertion that the interpreter did not interpret ‘Trinity’ correctly. There was no transcript of the Tribunal hearing before the Federal Magistrates Court and Smith FM was not satisfied that the appellant was ‘frequently interrupted’ or ‘misunderstood’ or ‘given strong pressure’ as alleged. Accordingly the Court rejects the submission that there was any deficiency as alleged with regard to the interpreting of the evidence before the Tribunal.

17. As a further ground of appeal, the appellant submitted that the Tribunal did not inform him of the reasons for its decision and that he was therefore not given the opportunity to argue or contest them.

18. The Tribunal’s decision states in detail the factual claims of the appellant. It also records the questions asked by the Tribunal of the appellant concerning his alleged involvement with the Christian community in Australia and of his knowledge of the Christian religion. The decision records the following:

    The Tribunal alerted the applicant to its concerns about his claims, in particular his scant involvement in any Christian activities in Australia and his limited knowledge of the faith.

19. The Tribunal referred to the evidence which the appellant had adduced but found that his claimed knowledge of the Christian religion was ‘threadbare’. The Tribunal found:

    The applicant’s readiness to give some pieces of information contrasted sharply with his general lack of familiarity. This was so marked that the Tribunal concludes that his evidence was rehearsed, and had been learned for the specific purpose of impressing the Tribunal at the hearing. The Tribunal considers that it is not a genuine reflection of any interest in or commitment to the Christian faith.

20. Accordingly the Tribunal found, as a matter of credit, that the claims of the appellant could not be believed.

21. In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 the Full Court considered the question whether an applicant for a licence to sell ‘X-rated’ videos had been denied natural justice on the ground that the decision maker had not, prior to refusing to grant the licence, given the applicant an opportunity to make submissions beyond the submissions the applicant had already made. In reversing the trial Judge’s decision, the Full Court considered the scope of the concept of natural justice in relation to such a hearing and said at 590:

    It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material: Dixon v Commonwealth (1981) 61 ALR 173 at 179. However, as Lord Diplock said in F Hoffman-La Roche and Co. A.G. v Secretary of State for Trade and Industry (1975) AC 295 at 369:

    “... the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If that were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would be abolished.”

    A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted. On the other hand, if information on some factor personal to that person is obtained from some other source and is likely to have an effect upon the outcome, he or she should be given the opportunity of dealing with it: Kioa v West at 587 (Mason J), 628 (Brennan J). Within the bounds of rationality a decision-maker is generally not obliged to invite comment on the evaluation of the subject's case: Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 506 (Fox J), 513 (Neaves J). In Ansett Transport Industries Ltd v Minister for Aviation (1987) 72 ALR 469 at 499, Lockhart J expressly agreed with the observations of Fox J in Sinnathamby on this point. See also Geroudis v Minister for Immigration Local Government and Ethnic Affairs (1990) 19 ALD 755 at 756-7 (French J) and Somaghi v Minister for Immigration, Local Government, and Ethnic Affairs (supra) at 103 (Keely J), 119 (Gummow J).

    The general propositions set out above may be subject to qualifications in particular cases. Two such qualifications were enunciated by Jenkinson J in Somaghi at 108-109:

    1.The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it: Kioa v West at 587 (Mason J); Sinnathamby at 348 (Burchett J); Broussard v Minister for Immigration and Ethnic Affairs (1989) 98 ALR 180 at 189 (Burchett J).

    2. The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Minister for Immigration and Ethnic Affairs v Kumar (unreported, Full Court, Federal Court, 31 May 1990); Kioa v West at 573, 588 and 634.

22. At page 591 it continued:

    Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.

23. In Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100, the majority of the Full Court said at 119:

    However, in a particular case, fairness may require the applicant to have the opportunity to deal with matters adverse to the applicant’s interest which the decision-maker proposes to take into account, even if the source of concern by the decision-maker is not information or materials provided by the third party, but what is seen to be the conduct of the applicant in question.

24. In the present proceedings the Tribunal had clearly indicated its concerns to the appellant. The Tribunal’s reasons state: ‘the Tribunal alerted the applicant to its concerns…’ as set out above. This discharged the obligation to provide procedural fairness because the decision maker brought to the appellant’s attention ‘the critical issue or factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it…’: see Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Straight Islander Affairs (2000) 103 FCR 539 at 557 per Merkel J; see also Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502, especially Fox J at 505-506 and Neaves J at 513. At 513 Neaves J said:

    It was a matter for the delegate to evaluate the material placed before him and, as the whole of that material had its source in what the appellant had said, there was no obligation upon him to inform the appellant that that material might result in him forming a conclusion adverse to her.

25. The finding of the Tribunal was based upon its non acceptance of the appellant’s testimony. The Tribunal based its findings upon information which the appellant provided to the Tribunal for the purposes of the application for review. Accordingly it falls within the exception to s 424A(1) of the Act contained in s 424A(3)(b) of the Act: see SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35].

26. For the above reasons, this appeal is dismissed.

27. The Minister has sought an order for costs in the sum of $3000. Since this is within a reasonable range for costs, the Court will make the order sought.

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

Associate:

Dated:        18 October 2007

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	J. Mitchell
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	16 August 2007
Date of Judgment:	18 October 2007