SZJWM v Minister for Immigration and Citizenship

[2007] FCA 2044

FEDERAL COURT OF AUSTRALIA

SZJWM v Minister for Immigration and Citizenship [2007] FCA 2044

SZJWM v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1326 OF 2007

DOWSETT J
23 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1326 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

SZJWM
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	23 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.the appeal be dismissed; and

2.the appellant 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 1326 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

SZJWM
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE:	23 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of China, born on 27 September 1967.  She arrived in Australia on 16 April 2006 and, on 31 May, applied for a protection visa.  A delegate of the first respondent (the “Minister”) refused that application.  The appellant applied to the second respondent (the “Tribunal”) for review of the decision.  The Tribunal affirmed the decision.  She applied to the Federal Magistrates Court for review of the Tribunal’s decision.  This is an appeal from the Federal Magistrate’s refusal of that application.

2. The appellant claimed that she had been a businesswoman in China.  On 5 December 2005 she went to a restaurant in Shantow City to have dinner with friends, a husband and wife, Mr Wang and Ms Zhang. At the restaurant they encountered a man called “He” who ran a seafood production business.  He had borrowed money from the appellant’s friends and was refusing to repay the loan.  Mr He’s uncle was an officer in the Public Security Bureau.  Mr He was therefore able to behave unfairly towards other people. 

3. In the course of the conversation with Mr He at the restaurant, Mr Wang, asked for repayment of the loan.  Mr He became abusive and eventually assaulted him.  Mr Wang lost consciousness and was taken to hospital where he died.  The appellant had dialled the emergency telephone number to summon the police, but they did not come. 

4. The appellant, as a witness to the incident, was later questioned by the police.  They said that she would be severely punished if she dared to expose the truth.  Ms Zhang, continued to agitate for an investigation into Mr Wang’s death and asked the appellant to accompany her to the Public Security Bureau and to other government offices.  They were told that the death was an accident caused by two businessmen in the course of normal argument.  Ms Zhang continued to agitate, asking the appellant to sign a report as a witness.  The report was circulated to various media outlets in the city.  Shortly thereafter, police came to the appellant’s home, asserting that she was suspected of distributing anti‑government propaganda.  She was arrested and taken to the Public Security Bureau where she found that Ms Zhang had also been arrested.  The appellant claimed that she was detained for more than a month and forced to confess to anti-government activities.  She was beaten, forced to perform punitive work and deprived of sleep.  She eventually signed documents which, I infer, were of a confessional nature.  She was eventually released from prison.  Ms Zhang remains in detention. 

5. After her release, the appellant continued to receive visits from the police.  She eventually sold her property in order to leave the country.  In arguing the appeal, she claimed to have bribed a police officer to secure her release so that she could leave the country.  She fears that if returned to China, she will be re-arrested and subjected to further mistreatment.  It is a little difficult to identify the particular reason for her fear of persecution but it may be that of imputed political opinion. 

6. There was some difficulty in connection with the conduct of the Tribunal hearing.  The appellant was initially invited to a hearing to take place on 11 October 2006.  The Tribunal received no response to the invitation to appear and then discovered that there may have been some irregularity in the address to which the invitation was sent.  It therefore invited the appellant to another hearing, scheduled for 20 November 2006.  However the appellant appeared on 11 October, and the hearing took place on that day.  The Tribunal questioned the appellant concerning her claims and, on the basis of that questioning, concluded that it did not accept that she had been ‘... a key witness to a murder and that she, along with Ms Zhang, approached the Public Security Bureau or media outlets about this.’  It also did not accept that she had been arrested and tortured or threatened. 

7. These conclusions were based upon four identified reasons.  The first was that in describing her period in detention, she ‘... spoke in generalities’ and ‘... did not convey any particulars that enabled the Tribunal to conclude that the applicant had in fact experienced a period of one month detention.’  Secondly, the Tribunal considered that her evidence concerning Mr He’s uncle’s position in the Public Security Bureau was inconsistent and unconvincing.  Thirdly, she claimed that Mr He was well known for his connections and intimidating practices in borrowing money.  However the Tribunal considered that as the fight with Mr Wang took place in a public place, it was unlikely that the appellant was the only person able to incriminate him.  This presumably meant that the Tribunal considered it unlikely that Mr He would go to such lengths to silence the appellant as she claimed, given that other people could also incriminate him.  This view seems to give little weight to the fact that, according to the appellant’s account, she and Mrs Zhang had been actively circulating information concerning the attack.  However it cannot be said that the Tribunal overlooked this fact in its overall assessment of the evidence as it clearly set out in the earlier part of its reasons.

8. Fourthly, the Tribunal considered that when asked to whom she could have spoken about Mr He’s actions and the Public Security Bureau’s involvement, she was vague and equivocal, stating that she would have appealed to a higher authority but demonstrating no knowledge of what or who this higher authority might have been.  I take this to imply that if the appellant’s account were true, she would have at least considered to whom she could have recourse in order to seek justice.  Understood in that way, it is probably a reasonable comment upon her account.

9. The appellant applied to the Federal Magistrates Court for review.  The grounds for review were that:

   ‘1.There was an error of law in the Tribunal’s decision constituting a jurisdictional error;

   2.There was procedural error in the Tribunal’s decision constituting an absence of natural justice.’

10. Particulars of these grounds were as follows:

    ‘1.The Tribunal failed to give to me, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and the Tribunal failed to ensure, as far as is reasonably practicable, that I understand why it is relevant to the review; and the Tribunal failed to invite me to comment on it. Therefore, the Tribunal failed to comply with its obligations under s424A(1) of the Act.

    2.Although I was invited to attend a hearing before the Tribunal, it has, in fact, failed to give me a chance to present arguments relating to the issues arising in relation to the decision under review. Therefore, the Tribunal failed to comply with its obligations under s425 of the Act.

    3.The Tribunal’s decision is of a bias.  The Tribunal gave too much weight to my performance at the Tribunal’s hearing, but completely ignored the fact that I was in a particularly vulnerable situation; and I have experienced serious difficulties, technical and psychological, in discussing my case with an alien official in a language not my own.  Especially, because of my experiences and sufferings in the past, I was in fear of the authorities in my own country must still feel apprehensive vis-à-vis any authority.  I might therefore be afraid to speak freely and give a full and accurate account of my case.  Therefore, it is definitely unfair that the Tribunal has completely ignore [sic] my written materials but simply made a decision relied on the Tribunal’s hearing.’

    In summary, I never ever believe that my application has been assessed by the Tribunal, fairly and carefully.’

11. The Federal Magistrate rejected the claim based upon s 424A, holding that the Tribunal’s findings went to the credibility of the appellant’s evidence. As to the alleged failure to provide an opportunity to present arguments pursuant to s 425, his Honour pointed out that the appellants had attended the hearing on 11 October and that the invitation to do so had complied with the requirements of the Act. There was, therefore, no failure to comply with the requirements of s 425.

12. The Federal Magistrate also concluded that there was no evidence of bias or of any failure to consider the appellant’s case, both on the documents provided in advance of the hearing and at the hearing.  His Honour considered that the appellant may well have been at a disadvantage in the hearing because of language problems and other pressures but pointed out that this did not constitute bias on the part of the Tribunal.  In those circumstances the Federal Magistrate concluded that there was no jurisdictional error.

13. The grounds of the present appeal are as follows:

    ‘1.The Federal Magistrates erred in law in finding that the Refugee Review Tribunal (“the Tribunal”) complied with s 425 of the Migration Act 1958 (“the Act”). 

    Particulars:

    a.During the Tribunal’s hearing, the Tribunal discussed with me about my claims, but failed to provide me a genuine opportunity to comment [on] the issues arising in relation to the review, for example, the issue in relation to my detention in China.  The Tribunal failed to indicate [to] me, clearly and properly, that the issue would become main reasons in affirming the decision under review.

    b.On most occasions during the hearing, I thought that I had already explained my claims or my evidences had already been understood; and thus I needed not to make any further explanation.  But, actually, I found that my information or evidences have been misstated or misunderstood.

    2.The Federal Magistrates [sic] erred in law in finding that the Refugee Review Tribunal (“the Tribunal”) complied with its obligations under s.424A(1) of the Act.

    Particulars:

    c.The Tribunal has considered the information, which was in relation to my claims about my experience at the detention centre, as the reason or part of reason in making its findings.

    d.As I have stated above, the information has been misstated or misunderstood by the Tribunal.  In other wards, [sic] it is not the information that I have given to the Tribunal, but the information which has been misstated or misunderstood.

    e.Based on the Act, I have found that:

    Section 424A.  Applicant must be given certain information

    424A.(1)       Subject to subsection (3), the Tribunal must:

    (a)       give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
    (b)       ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
    (c)       invite the applicant to comment on it.

    f.However, at any time before the Tribunal made its INCORRECT decision-

    -     The Tribunal failed to provide me the relevant information such as the ones mentioned above; and

    -     The Tribunal failed to inform me or ensure me, clearly and properly, that the information would be directly in relation to his final decision; and

    -     The Tribunal failed, honestly and fairly, invited me to comment on the information.

    g.It is, apparently, that the Presiding Member failed to comply with his obligation under s.424A(1) of the Migration Act 1958 (“the Act”).’

14. In oral submissions before me today, the appellant stressed that the documents which she provided to the Tribunal were genuine.  She also wondered why the Tribunal had rejected her appeal and asserted that there was no reason to do so.  She said that she was forced to come to Australia because of persecution in China.  The Refugee Review Tribunal had not been fair.

15. As to the allegation that s 425 was not complied with by the Tribunal, there is no identified failure to comply.  The complaint is rather that the Tribunal has not accepted her claims, which non-acceptance she considers to be misconceived and unfair.  Similar comments apply to her complaint concerning section 424A.  The decision is based upon the rejection of her account, not upon any information to which that section may have applied.  As I have said, once again the true complaint is that her claims were rejected.  Although the Tribunal’s reasons may be a little terse, I detect no jurisdictional error in the way in which it dealt with this matter. 

16. The appeal must be dismissed.  I order that the appellant pay the first respondent’s costs of the appeal.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:        19 December 2007

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the First Respondent:	Mr J Mitchell
Solicitor for the Respondent:	Clayton Utz
Counsel for the Second Respondent:	The Second Respondent did not appear
Date of Hearing:	23 November 2007
Date of Judgment:	23 November 2007