SZKGR v Minister for Immigration and Citizenship

[2007] FCA 1738

FEDERAL COURT OF AUSTRALIA

SZKGR v Minister for Immigration & Citizenship [2007] FCA 1738

SZKGR v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD1305 OF 2007

JESSUP J
7 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1305 OF 2007

BETWEEN:

SZKGR
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	7 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the respondent Minister fixed in the sum of $4,300.

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	NSD1305 OF 2007

BETWEEN:

SZKGR
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE:	7 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the court is an appeal from a judgment of the Federal Magistrates Court of Australia, given on 19 June 2007, dismissing an application for remedies of the kind to which s 476 of the Migration Act 1958 (Cth) (“the Act”) refers, in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) made on 22 January 2007 and handed down on 1 February 2007, by which the Tribunal affirmed an earlier decision of a delegate of the respondent Minister to refuse to grant a protection visa to the appellant pursuant to the provisions of the Act.

2. Although he entered Australia on a Taiwanese passport, the appellant claimed before the Tribunal that he was a national of the People’s Republic of China and had been obliged to resort to various subterfuges, including obtaining a false Taiwanese passport, in order to escape from China because of a fear of persecution for what he says were Convention-related reasons.  According to the version of events which the appellant provided to the Tribunal, he never had a Chinese passport, and was smuggled out of China first to Thailand, where some other people managed to provide him with a Thai passport, and from there to Hong Kong and then on to Taiwan, where some other people provided him with the Taiwanese passport which he used for the purposes of entering Australia on 21 June 2006.

3. The Tribunal was highly critical of the version of events which the appellant provided, and it is apparent from its written decision that it had considerable difficulty with the appellant’s story about travelling from China to Thailand and from there to Hong Kong and Taiwan, and with the claim that it was necessary to obtain a Taiwanese passport in order to secure entry into Australia.  For present purposes it is sufficient if I refer to the following extract from the Tribunal’s decision:

   Further, and in view of these findings, the Tribunal does not accept that the applicant needed, or was able, to acquire both a Thai and a Taiwanese passport in order to seek international protection;  but, rather, finds that his sole purpose was to circumvent Australia’s immigration procedures, and acquiring a stolen Taiwanese passport was for a non-Convention-related reason, as otherwise it is satisfied he would have come to Australia using his claim to false Thai passport.

   Indeed, while accepting that the applicant arrived in Australia on 21 June 2006, on a Taiwanese passport number 213454784, under the name Wang Ming Sen, the Tribunal finds that he has concocted his method of departure from China and lied about his not having a PRC passport in order to falsely establish a claim for a protection visa.  The Tribunal is further satisfied that it would not be possible for the applicant to have left China and been smuggled through several countries without having a valid PRC travel document, and is therefore satisfied that the applicant was the holder of a valid PRC passport.  Given this finding, the Tribunal accepts that for the purposes of article 1 of the Convention the applicant is a national of the People’s Republic of China.

   From that point in its decision the Tribunal addressed the merits of the appellant’s claims to have a well-founded fear of persecution at the hands of unfriendly elements within China who, according to the appellant, had at least the implicit support of the Chinese Government.  It is not necessary for me to address these matters of merit any further on this occasion, since the Tribunal’s findings in these respects have not been the subject of any challenge by the appellant in the submissions made to me today.  It is significant, however, to observe that the Tribunal approached its task on the merits by reference to an assumption that the appellant was Chinese and came from China.  That is the assumption which the appellant has urged me to make this morning, and it is manifest from the decision of the Tribunal that I could not do otherwise. 

4. As I have said, the appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court.  That application was supported by two grounds: first, that there was an error of law in the Tribunal’s decision constituting a jurisdictional error, and secondly, that there was procedural error in the Tribunal’s decision constituting an absence of natural justice.  The essence of the grounds are to be found in six particulars set out in the application in that court, namely:

   1.failure to comply with s 424A(1) of the Act;

   2.failure to comply with s 425 of the Act;

   3.bias; 

   4.the adoption of an unwarranted assumption; 

   5.miscellaneous unspecified errors of law, such as failure properly to determine the case, misunderstanding of the claims, failure to consider essential elements, addressing the wrong and irrelevant questions, failure to identify and consider the relevant issues, and incorrect assessment of the appellant’s credibility; 

   6.failure to assess the application fairly and carefully.

5. In his reasons for judgment dated 25 June 2007, the Federal Magistrate observed that a number of the submissions made to him by the appellant were directed to the merits of the decision by the Tribunal, and therefore were beyond the scope of proceedings properly brought in that court. His Honour dealt with the technical matters arising under ss 424A and 425 of the Act in accordance with submissions then made on behalf of the Minister. He decided those matters adversely to the appellant, and nothing which has been put to me this morning casts any doubt upon the way in which he did so. In the result, his Honour found that the decision of the Tribunal was free from jurisdictional error and dismissed the application before him.

6. In his Notice of Appeal in this court, filed on 9 July 2007, the appellant relies upon three grounds, namely:

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

   2.Bias. 

   3.Various miscellaneous grounds of the kind to which I have referred above in connection with the appellant’s application in the Federal Magistrates Court.

7. Neither in his written submissions filed on 2 November 2007, nor in his submissions made to the court this morning, however, did the appellant address any of the grounds adverted to in his Notice of Appeal.  Rather, the case which he sought to make out was that the Tribunal had been in error to hold that he was a Taiwanese person, and to decide the case before it by reference to the assumption, if not the finding, that he was Taiwanese rather than Chinese.  Since the appellant’s claims to have a well-founded fear of persecution relate entirely to events and circumstances said to have occurred in China, if the case had been determined against him by the Tribunal on the basis of him being Taiwanese, there would have been a fairly fundamental failure by the Tribunal to address the core issues being raised by the appellant’s case.  However, it is clear beyond argument that the Tribunal decided the application before it upon the basis that the appellant was Chinese.  It considered the merits of his claims to have a fear of persecution by reference to what he said had occurred in China.  It said specifically that it accepted that for the purposes of the Convention the appellant was a national of China. 

8. In his submissions to me this morning, the appellant said that the Tribunal accepted that he was Chinese, by which I take it he was referring to the decision of the Tribunal, particularly to the extent to which I have already referred to an extract from that decision.  His complaint, rather, was that during the hearing before the Tribunal, the member of the Tribunal said to him that he was Taiwanese, and said to him that he must go back to Taiwan.  I was invited by the appellant to procure the tape of the hearing before the Tribunal for the purposes of checking the accuracy of these assertions.  I do not propose to follow that course.  If the appellant desired to allege that there was some jurisdictional deficiency in the way the Tribunal went about its task, which was revealed by the tape of the proceedings before the Tribunal, then the proper place for that matter to have been tested was before the Federal Magistrate, and the proper person to have produced the relevant evidence was the appellant.  The case was simply not conducted before the Magistrate on the basis that it was necessary to obtain the tape of the Tribunal hearing, and to go over the way in which the member of the Tribunal questioned the appellant.  Neither did the appellant’s grounds of appeal in this court reveal the necessity for any such undertaking.  Unsurprisingly, counsel for the Minister was in no position to assist the court on such matters. 

9. If it were the fact that the Tribunal member had made observations to the appellant of the kind to which he referred before me this morning, that would not, in my view, amount to a procedural error of the kind that would be jurisdictional for purposes relevant to the application in the Federal Magistrates Court.  The appellant has made no serious suggestion before me that he was denied natural justice, and if what he alleges to have occurred at the Tribunal hearing did, in fact, occur, for my own part, I do not think it is at all self-evident that that would have involved a denial of natural justice.  I cannot see how observations of this kind made by the Tribunal member in the course of hearing could be jurisdictional.  It may be that the Tribunal member made those observations, if he did, early in the piece, when he was working by reference to the passport upon which the appellant entered Australia.  In the course of a hearing before the Tribunal, particularly in the circumstances of this Tribunal where there is no contradictor, it is neither surprising nor improper that the Tribunal member might test the story of a particular applicant by putting propositions to him or her that might ultimately prove to be unsound or unjustified.  For my own part, I would not think there was anything self-evidently wrong with this occurring, and certainly not such as would involve jurisdictional consequences.  What really matters, however, is not what kind of exchanges the Tribunal had with the appellant, but what findings the Tribunal made, what questions it addressed, and what conclusions it drew in its disposition of the application before it.  In these respects, as I have indicated earlier, the Tribunal thoroughly rehearsed all of the contradictions and uncertainties in the material upon which the appellant’s case relied, and ultimately came to the conclusion that the appellant was Chinese, that he had been in China during the time of the events upon which his substantive case relied, and that his application ought to be determined on that basis. 

10. It seems that these issues were not ventilated before the Federal Magistrate.  Counsel for the Minister made that point, but accepted that I should deal with them without the necessity to require the appellant to seek leave to advance a case different from that upon which he relied below.  I have proceeded in accordance with that indication.  The result of my consideration of the matters raised by the appellant is that there is no substance in them. 

11. For those reasons, I propose to dismiss the appeal.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated:        13 November 2007

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Ms V McWilliam
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	7 November 2007
Date of Judgment:	7 November 2007