SZJYU v Minister for Immigration and Citizenship

[2007] FCA 1354

FEDERAL COURT OF AUSTRALIA

SZJYU v Minister for Immigration and Citizenship [2007] FCA 1354

SZJYU v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD627 OF 2007

SPENDER J
14 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD627 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJYU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SPENDER J
DATE OF ORDER:	14 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed

2.The appellant pay the costs of the first respondent of and incidental to the appeal, fixed in the sum of $2,500.00.

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	NSD627 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJYU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SPENDER J
DATE:	14 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a 41-year-old male from Jiang Men.  He is a citizen of the People's Republic of China who arrived in Australia on 26 March 2006. 

2. On 4 May 2006, he lodged an application for a Protection Visa with the Department of Immigration and Multicultural Affairs.  On 1 August 2006 a delegate of the first respondent refused his application for a Protection Visa.  On 31 August 2006 the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision.

3. The appellant claimed that he was a Falun Gong practitioner and that Falun Gong practitioners had been persecuted for their beliefs in China.  He claimed that if he returned to China he would be persecuted for that reason. 

4. When the appellant appeared before the Tribunal on 13 November 2006 he gave evidence claiming in addition to his earlier claims, that he had been warned by authorities against fraternising with Falun Gong practitioners. 

5. On 5 December 2006 the Tribunal handed down its decision to affirm the decision of the delegate of the Minister.  The Tribunal did not accept that the appellant was a Falun Gong practitioner or that the Chinese authorities had any interest in him. 

6. When the matter was before the Federal Magistrates Court, her Honour Federal  Emmett FM, in her Honour’s reasons for judgment, at [7] said:

   The Tribunal noted with specificity the areas that it explored with the applicant.  Ultimately, the Tribunal was not satisfied that the applicant was truthful about his claim of involvement in Falun Gong in the PRC.  The Tribunal found that the applicant’s evidence in relation to the exercises was rehearsed and, because the Tribunal did not accept that the applicant had been involved in Falun Gong in the PRC, the Tribunal was not satisfied that the applicant practised Falun Gong in Australia.  The Tribunal noted that the applicant had no corroborative evidence of any practice carried out by him in Australia.

7. In [8] her Honour noted:

   At the heart of the Tribunal’s adverse credibility findings were the internally inconsistent claims made by the applicant at the hearing.  The Tribunal noted particular inconsistencies and concluded that:

   “The applicant’s propensity to change his evidence in order to make his story “fit” leads the tribunal to the finding that the applicant is not a witness of truth.”

8. Her Honour continued:

   The Tribunal noted that, at the conclusion of the hearing, it had pointed out to the applicant that there were contradictions in his claims and that it had some concerns with his credibility and noted that the applicant made no comments.  The tribunal found that the applicant’s claims of harm and threats of harm by the PRC authorities arising from his practice of Falun Gong to be a fabrication.

9. The application to the Federal Magistrates Court contained the ground:

   1.The RRT decision was affected by Jurisdictional error in that the RRT acted capriciously and arbitrally and formed its assessment of satisfaction on illogical reasoning

   Particulars:

   The Tribunal stated that it could not accept as credible the applicant’s claim that the PRT authorities have any on-going interest in him given the significant adverse findings in credibility in regard to his Falun Gong practice. 
   The Tribunal pointed out the inconsistencies given by the applicant at the hearing. The Tribunal failed to offer the applicant a fair opportunity to comment on such inconsistencies.

10. In the Notice of Appeal to this Court, the appellant specifies what is really only one ground. He claims that the Tribunal acted in breach of s 424A Migration Act 1958 (Cth) (the Migration Act), as it failed to offer the appellant a fair opportunity to comment on inconsistencies of the applicant’s claims.

11. The Tribunal pointed out some of the inconsistencies in the refusal decision. 

12. At the conclusion of the hearing on 13 November 2006, the Tribunal pointed out that there were contradictions in his claims, and that it had some concerns with his credibility.  However, the appellant claims that the Tribunal did not specify what these inconsistencies were, thus making the applicant unable to comment on them.

13. I have read the entirety of the reasons for judgment of the Tribunal, and of the Federal Magistrates Court.  The judgment of Emmett FM is not vitiated by error, in particular jurisdictional error. 

14. Her Honour’s finding on the credibility of the appellant was reasonably open on the evidence before the Tribunal.  It was based on an appraisal of the appellant’s testimony as to the genuineness of his Falun Gong beliefs.  That appraisal forms the basis for the credibility finding, and it is not competent for the Federal Magistrates Court or indeed this Court to review that factual finding. 

15. It is not the function of either the Federal Magistrates Court, or of this Court on appeal from the Federal Magistrates Court, to cure administrative error or administrative injustice.  Parliament has imposed the obligation to make findings on the merits of an applicant’s claim on the Tribunal. 

16. In relation to findings of credibility by the Tribunal, the observations of McHugh J in Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000)168 ALR 407 at [66] and [67] are relevant. His Honour said:

    In this case, the tribunal made an express finding that it did not accept the prosecutor’s wife’s evidence.  That was sufficient to comply with the requirements of s 430(1). 

    In addition, the prosecutor alleges that the tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor’s claim that members of PLOTE tried to recruit him were “utterly implausible.” However, this was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is the function of the primary decision-maker par excellence.  If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed.  The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.  In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible.”  The disbelief arose from the tribunal’s view that it was inherently unlikely that the events had occurred as alleged.

17. The claim in the appellant’s Notice of Appeal that there was a breach of  424A(1) is not made out. 

18. The reason for the decision by the Tribunal was the Tribunal’s appraisal of the appellant’s testimony. That appraisal was not “information” for the purpose of s 424A.

19. Section 424A provides:

    424A   Applicant must be given certain information

    (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)to 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.

    (2)      The information and invitation must be given to the applicant:

    (a)except where paragraph (b) applies – by one of the methods specified in section 441A; or

    (b)if the applicant is in immigration detention – by a method prescribed for the purposes of giving documents to such a person.

    (3)      This section does not apply to information:

    (a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

    (b)       that the applicant gave for the purpose of the application; or
    (c)       that is non-disclosable information.

20. In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 the High Court in the joint judgment of Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ, indicated the application of s 424A:

    [15] Section 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. Rather, the Tribunal’s obligation is limited to the written provision of “particulars of any information the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”. What, then, was the “information” that the appellants say the Tribunal should have provided? In their written submissions, the appellants appear to focus on the requisite “information” as being the “inconsistencies” between their statutory declaration and oral evidence. However, in oral argument they focused on the provision of the relevant passages in the statutory declaration itself, from which the inconsistencies were later said to arise.

    [16] Four points must be noted about this submission. First, while questions remain about the scope of para (b) of s 424A(3), it was accepted by both sides that information “that the applicant gave for the purpose of the application” did not refer back to the application for the protection visa itself, and thus did not encompass the appellant’s statutory declaration. In this regard, the parties were content to assume the correctness of the Full Federal Court decisions in Minister for Immigration and Multicultural Affairs v Al Shamry (2001) FCR 27 and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCR 214. Accordingly, no occasion now arises for this court to determine whether that assumption was correct.

    [17] Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration “would be the reason, or part of the reason, for affirming the decision that is under review.” The statutory criterion does not, for example, turn on “the reasoning process of the Tribunal”, or “the Tribunal’s published reasons”. The reason for affirming a decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (“would be”) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance -- and independently -- of the Tribunal’s particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or part of the reason, for affirming a decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.

    [18] Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 that the word “information”

    “does not encompass the tribunal’s subjective appraisals, thought processes or determinations …  nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.”

    If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

    [19] Fourthly, and regardless of the matters discussed above, the appellants’ argument suggested that s 424A was engaged by any material that contained or tended to reveal inconsistencies in an applicant’s evidence. Such an argument gives s 424A an anomalous temporal operation. While the Act provides for procedures to be followed regarding the issue of a notice pursuant to s 424A before a hearing, no such procedure exists for the invocation of that section after a hearing. However, if the appellants be correct, it was only after the hearing that the Tribunal could have provided any written notice of the relevant passages in the statutory declaration from which the inconsistencies were said to arise, as those inconsistencies could not have arisen unless and until the appellants gave oral evidence. If the purpose of s 424A was to secure a fair hearing of the appellants’ case, it seems odd that its effect would be to preclude the Tribunal from dealing with such matters during the hearing itself.

21. I have quoted the High Court’s judgment in SZBYR extensively because it provides a complete answer to the ground of appeal specified in the appellant’s Notice of Appeal.

22. The testimony of the appellant to the Tribunal was for the purpose of his application for review. It therefore was excepted from the obligations under s 424A(1) by reason of s 424A(3)(b): NBKT v The Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 at [41] to [64].

23. The claim by the appellant that he was not given a fair opportunity to comment on the inconsistencies in his own testimony is also not made out.  The Tribunal’s reasons indicate that he was given an opportunity to respond to the Tribunal’s appraisal of his testimony as being inconsistent. 

24. SZBEL v the Ministerfor Immigration and Multicultural and Indigenous Affairs & Anor (2006) 231 ALR 592 at [48] demonstrates there was no obligation on the Tribunal to give the appellant a running commentary on his testimony, or to put its subjective appraisal of that testimony to the appellant.

25. In SZBEL the High Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) said at [48]:

    … as Lord Diplock said in F. Hoffman-La Roche and Co AG 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 this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.

26. The High Court continued by saying:

    Procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given.  On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.

27. For these reasons, in my judgment, no error has been demonstrated in the Federal Magistrate’s judgment, nor jurisdictional error in the decision of the Tribunal. 

28. It follows that the appeal must be dismissed.

29. I order that the appeal be dismissed and that the appellant pay the first respondent’s costs of and incidental to the appeal, which I fix in the sum of $2,500.00.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated:        29 August 2007

The Appellant appeared in person.
Counsel for the Respondent:	J Mitchell
Solicitor for the Respondent:	Blake Dawson Waldron Lawyers
Date of Hearing:	14 August 2007
Date of Judgment:	14 August 2007