SZJVB v Minister for Immigration and Citizenship

[2007] FCA 1704

FEDERAL COURT OF AUSTRALIA

SZJVB v Minister for Immigration & Citizenship [2007] FCA 1704

IN THE MATTER OF SZJVB v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1344 OF 2007

JACOBSON J
7 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	1344 OF 2007

BETWEEN:

SZJVB
APPELLANT

AND:

Minister for Immigration & Citizenship
FIRST RESPONDENT

Refugee Review Tribunal
SECOND RESPONDENT

JUDGE:

Jacobson J

DATE OF ORDER:

7 November 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.   The appeal be dismissed.

2.   The Appellant pay the First Respondent’s costs of the appeal, assessed in accordance with Order 62 r 4(2)(c) of the Federal Court Rules, in the amount of $2,000.00.

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	1344 OF 2007

BETWEEN:

SZJVB
APPELLANT

AND:

Minister for Immigration and Citizenship
FIRST RESPONDENT

Refugee Review Tribunal
SECOND RESPONDENT

JUDGE:	Jacobson J
DATE:	7 November 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of Scarlett FM delivered on 27 June 2007.  The Federal Magistrate dismissed the appellant’s application for a review of a decision made by the Refugee Review Tribunal on 17 October 2006 and handed down on 7 November 2006.  The RRT affirmed a decision of a delegate of the respondent dated 6 June 2006. 

2. The appellant is a 33-year-old male and a citizen of the People’s Republic of China.  He arrived in Australia on 28 March 2006.  He lodged an application for a protection (class XA) visa on 28 April 2006, claiming to fear persecution on the ground of imputed political opinion arising from his exposure of maltreatment of Falun Gong practitioners held in a secret detention centre.  The delegate refused to grant the appellant a protection visa because she did not find the appellant’s claims to be credible. 

3. A summary of the appellant’s claim to have a well-founded fear of persecution is as follows:

   ●He worked in a small “village clinic” in which Falun Gong practitioners were secretly detained and maltreated; he said he saw them being hanged and tortured.

   ●In November 2005, the appellant discovered that a distant relative of his wife had been arrested as a Falun Gong practitioner and he told the woman’s boyfriend of the location of the secret detention centre.

   ●He became the subject of a PSB investigation into who leaked the information about the detention centre.

   ●After the boyfriend to whom the appellant had leaked the information was arrested, the appellant fled China fearing that he would be denounced and punished for leaking top secret information and stirring up anti-government protests.

4. The RRT conducted an oral hearing on 18 August 2006, which was attended by the appellant.  At the hearing, the appellant presented two documents; first, a purported employment identity card, and, second, a purported letter of termination of his employment dated 28 April 2006. 

5. The RRT raised its concerns about the authenticity of the letter with the appellant during the oral hearing.  The RRT also made comments during the oral hearing which indicated that it had concerns about the veracity of the appellant’s claims.  The RRT found that the appellant had fabricated his claims and that he had manufactured the purported letter from his former employer for the purpose of his application.

6. The appellant lodged an application for judicial review of the decision of the RRT in the Federal Magistrates Court.  The application was lodged on 7 December 2006.  It identified three grounds of review. 

7. The first ground was that the RRT failed to comply with the provisions of s 424A(1) of the Migration Act 1958 (Cth); the second was that the RRT had failed to comply with s 425 of the Act, and the third ground was a claim that the RRT was guilty of bias.

8. Federal Magistrate Scarlett came to the view that none of the grounds relied upon by the appellant gave rise to jurisdictional error.  His Honour’s reasons can be summarised shortly.

9. As regards the claim that the RRT should have provided to the appellant particulars of certain information under s 424A(1), the Federal Magistrate concluded that the items relied upon by the appellant were merely the RRT’s conclusions based upon the evidence before it. Accordingly, his Honour found at [16] to [19] that the “information” was not information within the meaning of s 424A(1) of the Act. His Honour referred to the decision of a Full Court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471.

10. As to the claim of contravention of s 425 of the Act, the learned Federal Magistrate observed that the delegate and the Tribunal had expressed concerns about the credibility of the appellant’s evidence.  His Honour observed that the appellant would have been justified in concluding that on the basis of the delegate’s decision, the credibility of his claims was in issue.  His Honour therefore came to a view that no breach of the section had been established in accordance with the decision of the High Court in SZBEL v Minister for Immigration and Citizenship (2006) 228 CLR 152. His Honour also concluded that there was no proper basis for the allegation of bias. He referred to established authority including a decision of the Full Court in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749.

11. The appellant’s notice of appeal seeks to re-agitate the grounds of review which were argued before the learned Federal Magistrate. 

12. The appellant appeared before me this morning.  His written submissions, for the most part, did not travel beyond the matters which were put to the learned federal magistrate. 

13. It seems to me that no error is disclosed in the Federal Magistrate’s reasons but I will deal with each of the three grounds separately. 

14. I can see no error in his Honour’s finding that the items of information referred to by the appellant did not constitute information for the purposes of s 424A. Each of them was a part of the Tribunal’s subjective appraisals or thought processes and hence, not encompassed by the term “information” in s 424A(1)(c): VAF at [24]; see also SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [18] and Minister for Immigration & Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 at [70]-[73].

15. The Notice of Appeal also includes under this ground a claim that the Tribunal ought to have supplied particulars of its concerns about the genuineness of the dismissal letter of 28 April 2006. It is true that the RRT did not accept the genuineness of that document. However, the Tribunal reached this conclusion because it found that the appellant was unable to explain a number of oddities about the content of the letter. It follows, in my view, as with the other two items of information referred to by the Federal Magistrate, that the finding about the letter was part of the tribunal’s subjective thought processes and therefore not information under s 424A(1).

16. The second ground of appeal also fails for the reason given by the Federal Magistrate.  The appellant was entitled to assume, and indeed should have assumed, that the issues which the delegate considered to be dispositive of the application were the issues which arose in relation to the decision under review by the RRT: see SZBEL at [35]. The Federal Magistrate dealt with this at [21] to [23], and I do not need to reiterate what was said by his Honour.

17. The same reasoning applies to the decision of the RRT to reject the dismissal letter as a genuine document.  This was an issue which the appellant should have assumed to be one which arose on the review before the RRT.

18. As regards the Federal Magistrate’s finding that there was no bias on the part of the RRT, it seems to me that the matter is covered for the most part in what was said by the Federal Magistrate at [24] to [30] of his Honour’s reasons. 

19. The appellant appears this morning without legal representation, but he had the assistance of a Mandarin interpreter.  He repeated what he put to the Federal Magistrate that the claim of bias was based upon the approach of the RRT, which looked at his application with a “Western bias.”

20. It is possible that some of the RRT’s findings may be criticised on that ground, however the High Court has observed on a number of occasions that the RRT is a specialist tribunal. For example, in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 428, McHugh J observed that parties to the Refugee Convention will frequently have detailed knowledge of conditions in the country of the applicant’s nationality and that it is unlikely that a state was expected to grant refugee status to a person whose account, even if plausible and coherent, was inconsistent with the state’s understanding of conditions in his or her country of nationality.

21. It seems to me that in the absence of any evidence before the Federal Magistrate to suggest that the norms in China are different from those which were applied by the Tribunal, there is simply no basis for the claims which the appellant puts before me this morning. 

22. In any event, as the Full Court observed in SBBS at [43ff], the allegation of bad faith is a serious matter and the Court will rarely find that a decision-maker had not acted in good faith. This is especially so when all that an applicant relies upon is the written reasons for the decision under review. Nor was there anything to suggest that a claim of apprehended bias could have been made out on the basis of the well-known authorities dealing with that topic. 

23. It follows therefore that I propose to order that the appeal be dismissed.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:             15 November 2007

The Appellant was self-represented.
Counsel for the Respondent:	R Francois
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	7 November 2007
Date of Judgment:	7 November 2007