SZKFO v Minister for Immigration and Citizenship

[2007] FCA 1294

FEDERAL COURT OF AUSTRALIA

SZKFO v Minister for Immigration and Citizenship [2007] FCA 1294

SZKFO v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD1072 OF 2007

COLLIER J
21 AUGUST 2007
BRISBANE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD1072 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKFO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	21 AUGUST 2007
WHERE MADE:	BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD1072 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKFO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	21 AUGUST 2007
PLACE:	BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. This is an appeal from the decision of Turner FM dated 29 May 2007, dismissing an application under s 476 of the Migration Act 1958 (Cth) (“the Act”) seeking judicial review of a decision of the second respondent (“the Tribunal”) (SZKFO v Minister for Immigration & Anor [2007] FMCA 890). The Tribunal had affirmed a decision of a delegate of the first respondent dated 14 August 2006 wherein the delegate refused the grant of a protection visa to the appellant.

   Background

2. The appellant is a citizen of the People’s Republic of China (“the PRC”). He arrived in Australia on 8 May 2006 and applied for a protection visa on 8 June 2006. The appellant claimed to have a well-founded fear of persecution in the PRC should he be forced to return. The appellant claimed that he had worked as an electric welder in a hospital in a military region and that he had been required to construct cells in a building near the hospital in which Falun Gong practitioners were detained and used for medical experiments. The appellant claimed that in around November 2005, after recognising that his neighbour had been detained in the facility and beaten by medical staff for refusing to take medications, he had informed his neighbour’s parents that their son was in this facility. The appellant claimed that he asked the family not to tell anyone that he had been the “informer”, however, when the family proceeded to protest outside the hospital the appellant decided to resign from the hospital. The appellant claimed that he came under suspicion as the authorities knew that he was a neighbour of the detainee and he was interrogated up to ten times by the PSB before managing to arrange his escape from the PRC. The appellant claimed that since his departure his brother-in-law has implicated him as the “informer” and as such he will be arrested if he returns to the PRC. The appellant also claimed that his wife has been questioned by the police.

   Before the Tribunal

3. The appellant filed an application for review of the delegate’s decision on 15 September 2006. The appellant attended a hearing before the Tribunal on 16 November 2006. On 20 November 2006 the Tribunal wrote to the appellant pursuant to s 424A of the Act. The Tribunal outlined that during the interview with the delegate the appellant had stated that his brother-in-law was “still in gaol” however at the Tribunal hearing the appellant confirmed the information contained in the statutory declaration which expressed that his brother-in-law had been detained and then released. On 6 December 2006 the appellant provided a statutory declaration in response to the s 424A letter stating that he had language and emotional difficulties during the interview with the delegate and might have made a mistake.

4. The Tribunal found that it was not satisfied that the appellant had a subjective fear of persecution in the PRC or that he faced a real chance of such persecution. In particular, the Tribunal found that the appellant did not impress the Tribunal as a credible witness for the following reasons:

   ·The appellant gave misleading and evasive about his residency in Sydney.

   ·The Tribunal accepted that the appellant may have been employed at a hospital and that his hospital identification and reference may have been genuine, however it was implausible that the appellant built cells on the ground floor of a building while medical staff continued to work in the floors above. The Tribunal did not accept the appellant’s evidence.

   ·The Tribunal found the answers regarding the work the appellant was performing when he allegedly saw his neighbour who had been detained to be implausible.

   ·The Tribunal found it inconsistent that the appellant did not visit his neighbour while he was in prison because he did not want to get involved and yet claimed to have told his neighbour’s parents about his detention.

   ·The Tribunal found the evidence about having seen his neighbour to be unconvincing.

   ·The Tribunal found the evidence about informing the parents and the actions of the parents to be unconvincing.

   ·The Tribunal did not accept that the appellant claims to have never discussed the cells with his brother-in-law but on the advice of his brother-in-law he resigned from the hospital.

   ·The Tribunal found the details about interrogation by the PSB to be inconsistent and unconvincing.

   ·The Tribunal did not accept the evidence of the appellant that a friend had assisted him leave the PRC but they had not discussed arrangements such a payment or the reason why the appellant was leaving the PRC.

   ·The appellant gave inconsistent evidence in relation to the contact he had had with his wife since leaving the PRC.

   ·The Tribunal did not accept the explanations given in the response to the s 424A letter.

5. As such, the Tribunal found that it was not satisfied that the appellant was a person to whom Australia owed protection obligations.

   Decision of the Federal Magistrate

6. On 15 February 2007 the appellant filed an application for review of the decision of the Tribunal. Before Turner FM the appellant filed an amended application on 19 April 2007 which raised two grounds of review. First, the appellant alleged that there was error of law in the decision of the Tribunal constituting jurisdictional error and second, that there was procedural error in the decision of the Tribunal constituting an absence of natural justice. The grounds were particularised as follows:

   1.The Tribunal failed to comply with s 424A of the Act. The appellant gave a number of specific examples where the appellant claims that the Tribunal misstated or misunderstood or failed to consider his information properly.

   2.The Tribunal failed to consider the claims properly and fairly. The Tribunal made its findings based on unwarranted assumptions. The Tribunal ignored or failed to consider claims made to it. The Tribunal ignored other relevant materials which were before it. The Tribunal misunderstood the claims or made a mistake in relation to an important finding of fact.

7. Turner FM outlined that the reason for the decision of the Tribunal was that it did not accept the evidence of the appellant and that a finding of credibility was a finding of fact which was not reviewable by his Honour (at [12]).

8. In relation to the first particular the Turner FM found that the inconsistency relating to the residential address of the appellant was a subjective appraisal by the Tribunal which was not information covered by s 424A of the Act (at [14]). The allegation that the Tribunal did not put information from the documentary evidence of the appellant to the appellant was similarly determined to be an appraisal of the evidence submitted by the appellant, and not subject to s 424A (at [15]). As the appraisals were not subject to s 424A there was no obligation on the Tribunal to ensure the appellant understood why the appraisals were relevant.

9. His Honour found that the appellant’s second particular was a catch-all claim without any details or evidence to support it. His Honour found that none of the allegations in the particular had been made out and therefore rejected the first ground of the application (at [19]).

10. Further, his Honour found no denial of natural justice as alleged in ground two of the application and the amended application. No breach of Div 4 of Pt 7 was established. It was noted that the appellant had been invited to attend the hearing and that a s 424A letter was sent to him through his representative.

11. As to further claims that had been made in the amended application his Honour found that these concerned findings of fact by the Tribunal which were open to it on the material before it and not the subject of review (at [21]-[23]).

    The appeal to this Court

12. The appellant appealed to this Court by notice of appeal filed on 14 June 2007. Two grounds were raised, namely:

    1.The Federal Magistrate was wrong in finding that the Tribunal complied with its obligations under s 424A(1) of the Act.

    2.The Federal Magistrate was wrong in finding that the Tribunal considered the claims of the appellant properly and fairly.

13. These grounds of appeal are substantially identical to those raised before Turner FM at first instance.

    Section 424A claim

14. I can identify no error in the findings of his Honour at [14]-[19] and [25] of the Reasons for Judgment. His Honour is correct in stating that conclusions as to inconsistency and appraisals of material before the Tribunal are not “information” within the meaning of s 424A. His Honour’s decision is vindicated by the recent decision of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 616 where the majority said:

    …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 par (a) of s 424A(1)... Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs 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’”

    Failure to properly consider claims of the appellant

15. I can identify no error in the findings of his Honour at [19] at first instance dismissing the claims of the appellant that the Tribunal had failed to consider the appellant’s claims properly. As his Honour observed, no details or evidence was put by the appellant to support these claims. The detailed nature of the Tribunal’s reasons in my view negates a claim that the Tribunal has not properly considered the appellant’s claims. In any event, any mistakes made by the Tribunal in the form of factual findings are not capable of challenge in this Court.

16. Having said this, I think it reasonable to observe that, unlike in many cases, and on paper, the claims of the appellant before the Tribunal in this case are unusual, and indeed have a ring of authenticity.

17. However, in making this observation I am also aware that (a) the Tribunal has seen and questioned the applicant at the hearing and (b) decisions of the Tribunal are privative clause decisions, with the result that issues of fact, including issues of credibility of evidence, are not subject to challenge in this Court.

    Conclusion

18. As the appellant has demonstrated no error in the decision of his Honour the appeal is dismissed with costs.

    THE COURT ORDERS THAT:

    1.The appeal be dismissed with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:        21 August 2007

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	H Bevan
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	21 August 2007
Date of Judgment:	21 August 2007