SZKFG v Minister for Immigration and Citizenship

[2007] FCA 1896

FEDERAL COURT OF AUSTRALIA

SZKFG v Minister for Immigration and Citizenship [2007] FCA 1896

SZKFG v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1241 OF 2007

COWDROY J
29 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1241 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKFG
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	29 NOVEMBER 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 $3800 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 1241 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKFG
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE:	29 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals from the decision of Federal Magistrate Turner dated 14 June 2007 in which his Honour affirmed the decision of the Refugee Review Tribunal (‘the Tribunal’) dated 9 January 2007. That decision upheld the decision of a delegate of the extant Minister for Immigration and Multicultural Affairs (‘the Minister’) to refuse to grant the appellant a protection visa.

   BACKGROUND

2. The appellant is a citizen of the People’s Republic of China (‘the PRC’) who arrived in Australia on 26 April 2006. On 26 May 2006 the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (‘the Department’). The Minister refused the application for a protection visa on 18 August 2006. On 18 September 2006 the appellant applied to the Tribunal for a review of such decision.

3. The appellant claimed that his sister had participated in the 1989 pro-democracy movement while the appellant was studying in Japan and that she asked him to collect newspaper articles in relation to the overseas response to the student’s activities. The appellant claimed that his sister disappeared after the incident in Tiananmen Square, that his father was beaten and his parents were sent to the local police station and were ultimately forced to leave Beijing. The appellant claimed that when they arrived in Fuzhou his father was arrested and hospitalised in consequence of the beating he received from the police while in detention.

4. The appellant claimed that in 1990 he returned from Japan after learning of his father’s ill health and was taken to the Public Security Bureau (‘PSB’) where he was subject to interrogation because he had been distributing anti-government propaganda. The appellant claimed that he was mistreated and forced to promise that he would not participate in anti-communist activities. Upon his release the appellant again departed for Japan where he remained for four years. The appellant claimed that he was questioned by the PSB on numerous occasions and threatened with punishment if he continued to participate in anti- government activities. The appellant claims that he distributed petitions and later a book relating to the 1989 movement which a friend had brought back from overseas.

5. The appellant claimed that in 2006 he distributed another book from overseas and members of the group were arrested. The appellant claimed that a friend in Japan assisted in arranging for him to be smuggled out of China at the behest of his mother and that since his departure from the PRC the PSB have attended his home to arrest him.

   TRIBUNAL’S DECISION

6. The appellant attended the hearing before the Tribunal and was assisted by a Mandarin interpreter.

7. On 22 November 2006 the Tribunal wrote to the appellant inviting him to comment on several concerns that it had in relation to his application (‘the s 424A letter’). The s 424A letter provided details of an application made by the appellant under a different name in the PRC for a business visa. The appellant had listed details of his family members but had not referred to a deceased sister, nor of a sister born in 1969, as was claimed in his protection visa application. The s 424A letter clearly indicated that if the Tribunal accepted the truth of such statements, it would have the result that the appellant’s claim for protection was fabricated.

8. Secondly the Tribunal indicated that the appellant was one of a large number of persons who had applied for a business visa claiming that they wished to visit Australia for a particular seminar and that all of such persons had been represented by the same person in Hong Kong.

9. Thirdly the s 424A letter stated that the application for a business visa was refused by the Australian Consulate in Guangzhou because they doubted the appellant’s bona fides. The Tribunal said that it could conclude that the reason why the appellant obtained a falsified passport was to avoid the scrutiny of the Australian authorities, rather than avoiding the scrutiny of the PRC authorities.

10. The Tribunal also stated that there was a discrepancy in the name of the appellant’s father, and that no death certificate of his father had been provided with his visa application, even though the appellant claimed at the hearing that it was always kept with him.

11. In addition the Tribunal observed that the appellant had a passport in his own name in 2003 which suggested he would have been regarded by the authorities in the PRC as one of the ordinary people whose activities did not warrant him being prevented from travelling abroad. The Tribunal found that the passport was issued in the normal way and that he was not adversely regarded by the authorities in 2003.

12. The appellant replied to the s 424A letter in a statutory declaration dated 6 December 2006.

13. In its findings the Tribunal noted that the appellant did not mention in his application for a protection visa that he had previously made an application for a business visa. In rejecting the appellant’s explanation for failing to disclose such application, the Tribunal found that the appellant attempted to conceal his prior application to conceal the fact that he held a current passport in his own name and that he had been refused a visa.

14. The Tribunal found that the information given in relation to the business visa was accurate. It found that as the appellant was able to leave the PRC in 1990 it did not accept that the appellant came to the adverse attention of the authorities in 1990 because he had sent material from Japan to his sister in 1989. Further, it did not accept that the appellant had a sister who went missing in 1989 nor that his father was involved in trying to find out what happened to her. It did not accept that the appellant’s father was arrested in 1989 and 1994 and that he was admitted to a psychiatric hospital.

15. The Tribunal accepted that the appellant’s father died in 1995. The Tribunal gave no weight to the death certificate provided at the hearing by the appellant as it was of a kind that could be easily fabricated and it had not been presented at the time the protection visa was lodged. The Tribunal did not accept that the death of the appellant’s father was attributable to any adverse action by the authorities in the PRC. Further the Tribunal did not accept that the appellant had any reason to agitate for his father’s release from hospital or seek justice from the authorities for such death.

16. As a result, and given that the appellant’s assertions about anti-government activities were unsupported and lacking corroborative evidence, the Tribunal did not accept that the appellant was involved in such actions as alleged. Accordingly the Tribunal was not satisfied that the appellant was someone to whom Australia owed protection obligations under the Refugees Convention.

    APPLICATION FOR REVIEW TO THE FEDERAL MAGISTRATES COURT

17. By application filed on 14 February 2007 in the Federal Magistrates Court the appellant sought to quash the Tribunal’s decision on the grounds that there was an error of law constituting jurisdictional error and that there was procedural error constituting an absence of natural justice. In particular, the appellant claimed:

    1.The Tribunal failed to consider the application properly and fairly and erred in finding that ‘… the applicant’s passport was issued in the normal way and that he was not adversely regarded by the authorities in 2003…’

    2.The Tribunal failed to assess the evidence in relation to the death of the appellant’s father and his sister’s disappearance, and it used unbalanced reasons for rejecting his evidence.

    3.The Tribunal made a decision with bias and unfairly gave too much weight to the previous application for a business visa made in January 2005.

    4.The Tribunal failed to comply with its obligations under s 424A(1) of the Migration Act 1958 (Cth) (‘the Act’) and completely ignored his claims submitted after the Tribunal hearing.

    5.The Tribunal did not assess his application fairly and carefully.

18. In relation to the first particular Turner FM found that the appellant was seeking to challenge the findings of fact made by the Tribunal and found that such findings were properly open to the Tribunal on the material before it. Particular two was rejected for the same reason.

19. Turner FM determined that particulars three and five alleged bias. As no details were provided his Honour rejected this claim.

20. In relation to the assertion regarding the weight given to the business visa application in particular three, Turner FM drawing on the decision in Tefonu Pty Ltd v Insurance and Superannuation Commissioner (1993) 44 FCR 361, found that the decision was not so unreasonable to warrant setting it aside. The Tribunal was entitled to accept, reject, or give such weight to the evidence, as it thought appropriate in the circumstances.

21. Turner FM rejected particular four noting that it was apparent that the Tribunal had considered the appellant’s claims and that the Tribunal had not ignored the appellant’s responses contained in his statutory declaration provided in answer to the s 424A inquiry. The Tribunal was entitled to make findings of credibility on the material before it.

22. For these reasons his Honour dismissed the application for review.

    APPEAL TO THIS COURT

23. By Notice of Appeal filed on 2 July 2007 the appellant appealed to this Court from the decision of Turner FM. The Notice of Appeal asserts that Turner FM erred in finding that the Tribunal considered the evidence of the appellant properly and fairly; that the Tribunal had not made its decision with bias; and that the Tribunal complied with its obligation under s 424A(1) of the Act.

    FINDINGS

24. In respect of the first ground of appeal the appellant challenges the factual findings of the Tribunal relating to his sister’s absence from the business visa application form; how he obtained his passport in 2003 in his own name, and the reason for difference in circumstances when he wanted to leave the PRC in 2006; why he was released from detention after only one week in January 1990 and allowed to travel to Japan using a passport in his own name in February 1990; and why he failed to produce the death certificate of his father to the Tribunal but not to the Minister in his initial application.

25. Before reaching its factual findings the Tribunal invited the appellant to appear before it and he did so. Thereafter the Tribunal wrote to the appellant pursuant to s 424A of the Act seeking further information on particular matters of concern to it. The reasons for the Tribunal affirming the decision not to grant the appellant a protection visa were based upon the information which the appellant had provided to the Tribunal.

26. The Tribunal afforded the appellant every opportunity to provide all relevant information upon which he sought to rely, but it is apparent that the Tribunal did not regard the appellant as a witness of truth.

27. By challenging the Tribunal’s factual findings, the appellant is asking the Court to conduct a merits review. It is a well established principle that the Court on appeal cannot review findings of fact: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]. There is no error of law demonstrated by the first ground of appeal and it must be dismissed.

28. The second ground of appeal alleges bias, a claim which was raised before Turner FM. However, as his Honour correctly observed, it is a matter for the Tribunal to determine the weight which should be given to evidence. The mere fact that the finding is adverse to the appellant does not demonstrate bias. No particulars have been provided and no transcript has been provided. An allegation of bias is a very serious allegation and must be specifically pleaded and clearly proven: see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]. Further as it was held in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [43]-[48] and NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21] it is a rare and exceptional case where bias can be found solely from the published reasons of a decision. There is no evidence from which the Court could find bias by the Tribunal.

29. By the third ground of appeal the appellant claims that the Tribunal failed to comply with s 424A of the Act. Such allegation is made upon the ground that the appellant’s responses to the Tribunal’s inquiries were not taken into consideration and were therefore ignored. However the Tribunal’s reasons clearly refer to the statutory declaration provided to it on 6 December 2006 in response to the Tribunal’s inquiries raised in the s 424A letter. The Tribunal therefore took into consideration such responses and there is no basis for asserting that it did not.

30. The Court can discern no error in the decision of the Tribunal nor in the decision of Turner FM. Accordingly the Court dismisses the appeal.

31. The Minister has sought an order for costs in the sum of $3800. The Court will make such order pursuant to Order 62 Rule 4(2)(c) of the Federal Court Rules 1979 (Cth).

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated:        29 November 2007

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	D. Godwin
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 November 2007
Date of Judgment:	29 November 2007