SZKHK v Minister for Immigration and Citizenship

[2007] FCA 1700

FEDERAL COURT OF AUSTRALIA

SZKHK v Minister for Immigration & Citizenship [2007] FCA 1700

MIGRATION – consideration of grounds of appeal from a decision of the Federal Magistrates Court raising questions of contended bias; a contended failure on the part of the Refugee Review Tribunal to have regard to s 424A(1) of the Migration Act 1958 (Cth); and whether a factual foundation subsisted for findings of credit adverse to the appellant, by the Tribunal

Decision

Appeal dismissed with costs

Migration Act 1958 (Cth), s 424A

SZKHK v Minister for Immigration and Anor [2007] FMCA 1207
Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87
Jia v Minister for Immigration and Multicultural Affairs (1999) 93 FCR 556
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507

Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Johnson v Johnson (2000) 201 CLR 488

Singh v Minister for Immigration and Ethnic Affairs (1996) FCA 902

SZKHK v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD1444 of 2007

GREENWOOD J
5 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD1444 OF 2007

BETWEEN:	SZKHK Appellant
AND:	MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent
AND	REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	GREENWOOD J
DATE OF ORDER:	5 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the respondents’ 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
QUEENSLAND DISTRICT REGISTRY	NSD1444 of 2007

BETWEEN:	SZKHK Appellant
AND:	MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent
AND	REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	GREENWOOD J
DATE:	5 NOVEMBER 2007
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. This is an appeal from orders made by Federal Magistrate Scarlett on 6 July 2007 (SZKHK v Minister for Immigration and Anor [2007] FMCA 1207) dismissing an application for review of a decision of the Refugee Review Tribunal given on 13 February 2007 by which the Tribunal affirmed the decision of the delegate of the Minister for Immigration and Citizenship not to grant the appellant a protection visa pursuant to the provisions of the Migration Act 1958 (Cth) (as amended).

2. The appellant filed a notice of appeal on 25 July 2007 from the decision of Federal Magistrate Scarlett by which three grounds of appeal are raised and they are these:

   (1)The Refugee Review Tribunal had made the decision in their mind before hearing; 

   (2)      The decision of the RRT involved an error of law; and

   (3)The RRT ignored the truth that I would be in danger of I came back to China. 

3. The grounds of appeal, therefore, invite the suggestion that Federal Magistrate Scarlett fell into error by failing to find that the Refugee Review Tribunal had itself fallen into those identified errors.

4. The background to the matter is this.  The appellant is 34 years old, male and single.  The appellant claimed before the Tribunal to be a Chinese born citizen born in Beijing on 3 August 1972.  He gave his occupation as an aquatic farmer and travelled on a valid Chinese passport issued on 26 August 2004 in Beijing.  He previously travelled using the same passport as a tourist to Hungary on 20 July 2005 and returned to China on 31 July 2005.  He arrived in Australia travelling on the same passport.  He was issued with an Australian visitor visa on 26 April 2006.  The Tribunal noted that the departmental records before it noted that the tourist visa ‘applicant’ was married and employed as Vice-Director of the Beijing Intelligence Exchange Association.

5. The Departmental records noted that the photograph used for the visa application was not that of the person who appeared in the applicant’s passport being the person making a claim for a protection visa.  In relation to the claims, the applicant before the Tribunal claimed in his statement attached to his protection visa application that he is an aquatic farmer and made a stand against local government officials as a result of which he could not live in the People’s Republic of China any longer with safety.  The appellant had claimed that in 1989 he commenced fish farming with a contract from the Mentougou Town Council which gave him 20 years of guaranteed rights to fish particular ponds.

6. In February 1991, the appellant built his own business and began aquaculture to grow eels.  He borrowed money for that purpose and ran a business.  In January 2005, the appellant claimed he was informed that the land allocated to him for eel breeding was to be withdrawn and used to build a power station.  Apparently, many other farmers faced the same situation.  They sought compensation according to particular government rules about that matter and were willing to support the new power station project.  However, apparently, it transpired that the local authorities were not prepared to offer compensation at the levels thought appropriate as a result of which the present appellant descended into controversy with authorities about that matter. 

7. The appellant saw the proposed compensation offer as unfair and demanded that steps be taken to increase the compensation offer.  Those matters degenerated further with the result that the matter could not be resolved.  Two months after some of these events during July, approximately on 20 September 2005, the appellant, with others, was asked to attend a meeting about these compensation questions.  That delegation was offered certain further moneys which proved to be unacceptable and then apparently, threats were made by authorities that the police would be called to deal with the matter.  Some of these individuals were detained in the local police station for the day and later transferred to a detention camp on 22 September 2005.

8. Apparently later, on 29 September 2005, the appellant was sentenced to six months’ labour reform without his case ever being heard before a Court. While in the detention camp, the appellant claimed that he was tortured. All of these matters that I have just recited are claims made by the applicant before the Tribunal, both in papers and in an appearance before the Tribunal. In the course of dealing with these matters, the Tribunal sought further information from the appellant and on 11 September 2006, the Tribunal sent such a letter for the purposes of s 424A of the Migration Act to the appellant.  That letter sought information in relation to the appellant’s claim to be a single aquatic farmer specialising in eel breeding from 1989 to 2005.  The letter was the subject of a response from the appellant on 26 September 2006.

9. In the course of that response, the appellant said that he had lost trust in the Chinese government and gave further details about his concerns about returning to China. On 23 November 2006, the Tribunal sent a further letter for the purposes of s 424A of the Migration Act in similar terms to the previous letter.  However, no response was received to that letter.  The appellant gave evidence before the Tribunal.  In the course of the Tribunal’s reasons, in addressing its concerns and weighing the various claims against the evidence, the Tribunal had regard to the appellant’s travel in Europe in July/August 2005; the various claims made in relation to eel farming over the period of time; the appellant’s knowledge of the Mentougou District, its rivers, facilities, assets; aspects of the proposal in relation to the proposed power station; and evidence in relation to the detention claims. 

10. Having considered each of those topics, the Tribunal then made findings and it would be appropriate to record some of these. 

11. They are the following:

    (1)The Tribunal is not convinced that the applicant is who he claims to be. Clearly, the applicant cannot be both a Vice‑Director of the Beijing Intelligence Exchange and married as claimed when he applied for a tourist visa to visit Australia and an unmarried eel farmer as claimed in his protection visa application. The Tribunal gave the applicant every opportunity at his hearing and later through the s 424A process to explain his identity to the satisfaction of the Tribunal. However, his response to the Tribunal’s s 424A letter provided no additional information on which it could rely in making its decision.

    (2)The Tribunal has concluded that an application was made to visit Australia which contained serious inaccuracies in regard to his background and occupation, even to the point of using a photograph and the identity of a different person.

    (3)The Tribunal does not accept as credible the applicant’s claim that he was unaware that he had been given a visitor’s visa on the basis of information that he was married and not single as claimed, and that his occupation had been given as Vice‑Director of the Beijing Intelligence Exchange Association and not as an eel farmer.

    (4)The applicant admitted to the Tribunal that he had been prepared to pay money for an agent to arrange his visa application for him to leave China.  He did not specifically wish to come to Australia.  The Tribunal formed the impression that he did not appear to care whether or not the information in the visa application was accurate.  Consequently, the Tribunal is not satisfied that the applicant is a credible witness.

    (5)The issue as to the applicant’s true identity is strengthened by the fact that the Tribunal is not convinced that he made a short visit to Europe in July 2005 in the midst of his claimed land problems.

    (6)The Tribunal’s conclusion that the applicant was not a reliable witness and may not come from the Mentougou District as claimed, was further supported by his poor knowledge of the district.

    (7)In view of the finding that the applicant is not a reliable witness, the Tribunal is not convinced that he was an eel farmer and involved in a dispute with the Mentougou Council over land resumption.

12. The Tribunal further concluded that it was satisfied that the applicant obtained a visitor’s visa using fraudulent means, and further concluded:

    Consequently, although the applicant’s claims regarding his dispute with the local authorities over land are plausible, the Tribunal remains unconvinced that its claims are genuine.

13. The Tribunal ultimately reached this position:

    As the Tribunal has determined that the applicant is not a reliable witness, it does not accept the applicant’s claims that he fears persecution on his return to China, or that he is a person of interest to the authorities.  Nor does the Tribunal accept that upon his return to China the applicant will be at risk of being persecuted for his perceived political views or for wanting to seek compensation through the Chinese legal system, now, or in the foreseeable future.

14. The appellant appeared before the Federal Court today representing his own interests but with the support of an interpreter.  The appellant describes the basis for his challenge to the orders of Federal Magistrate Scarlett in these terms.  The appellant says that he was not given a fair go.  The appellant says that he has a civil case in China and that he wants protection in Australia because he does not know what will happen to him should he return to China.  His concern in relation to the civil case is that he continues to challenge the acquisition of the land upon which the aquaculture venture was conducted; that he has invested $1 million in Australian dollars in that venture and has now lost the land and investment; and should he return to China and persist with that civil proceeding and press those entitlements, as he perceives them, he will be subjected to pressure and persecution.

15. On that footing, the appellant says he has a well‑founded fear of persecution for a Convention reason. In addition, the appellant says that the decision of the Tribunal was reached before the hearing was conducted, which goes to the bias allegation. Further, the appellant says that there is an error of law. The appellant also makes a number of further observations in relation to some of these matters addressed by the Tribunal. As to the two letters sent pursuant to s 424A(1), the appellant accepts that he received the first letter and responded to it through the mechanism of a friend who wrote a response. As to the second letter, the appellant did receive that letter but no longer had the support of his friend; didn’t understand the letter; and was not able to write a response to it. As to the tourist visa application and the inconsistency with the protection visa application, the appellant says that an agent organised the tourist visa and, in effect says, that he ought not to be held accountable for that inconsistency. As to the hearing before the Tribunal, the appellant says that he was advised by the Tribunal member that the case in China had nothing to do with these proceedings. The appellant also says that the Tribunal member told him that the case, which I assume to mean again the civil case in China, did not constitute a basis for a well‑founded fear of persecution for a Convention reason, before the Tribunal.

16. The appellant says that he cannot understand why he is not a ‘refugee’ as his land has been taken from him and, in effect, he is a displaced person.  A lot of these matters, of course, go to the underlying factual questions and the issue for this Court is whether there is a demonstrated error on the part of the Federal Magistrate in dealing with the application before his Honour.  In relation to the grounds of appeal which are said to demonstrate an error of law, the first is the contention that the Tribunal made a decision before conducting a hearing and was therefore biased.  In relation to bias, French J in Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87, observed that bias must be a pre‑existing state of mind which disables the decision‑maker from undertaking or renders him unwilling to undertake any or any proper evaluation of the materials before him or her which are relevant to the decision to be made.

17. That view of the threshold for establishing bias was adopted by the Full Court of this Court per Spender, Cooper and Nicholson JJ in Jia v Minister for Immigration and Multicultural Affairs (1999) 93 FCR 556, with all members adopting the view of French J and that view of the Full Court was regarded by the High Court in Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 as orthodoxy. At [72], their Honours Gleeson CJ and Gummow J observed that the views expressed by the Full Court and by French J accord with the decisions of the High Court in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 91, and Johnson v Johnson (2000) 201 CLR 488.

18. Moreover, no inference of bias can simply be drawn from the fact that the Tribunal has reached conclusions which are adverse to the appellant, and as Lockhart J observed in Singh v Minister for Immigration and Ethnic Affairs (1996) FCA 902 at 9, any contention of bias must be assessed against all the facts and circumstances of the whole case. Examining the facts and circumstances of the whole case, it seems to me clear enough that there is no demonstrated actual or apprehended bias. In the course of submissions this afternoon, the appellant made observations which are very similar to those made at [16], [17] and [18] of the reasons of Federal Magistrate Scarlett.

19. Those observations of the appellant before his Honour were made as oral submissions and were not supported by any evidence.  Before this Court, similar contentions are made in oral submissions but they too are not supported by evidence and certainly fall well short of any satisfactory material in support of a contention of bias.  Accordingly, I am not satisfied that the first ground is made out.  The second ground is that the decision of the Tribunal involved an error of law.  The difficulty for the appellant, as it seems to me, in supporting that ground is that a large part of the submissions go to factual matters.  The proper analysis of the Tribunal’s process of reasoning; its analysis of the claims; the subject matter which attracted quite detailed analysis; and the findings, were all comprehensively addressed in the written reasons. 

20. The particular concern in relation to the obvious difficulty for the Tribunal that an application for a tourist visa had been made on a fundamentally different footing from the application for a protection visa (that is, the identity issue) was addressed through the mechanism of the s 424A letters, of which there were two and an assessment of the evidence before the Tribunal.

21. It cannot be contended with any force that the Tribunal has not sought to get to the bottom of the claims; the strengths and weaknesses of the contentions surrounding those claims; and nor can it be contended that it was not open to the Tribunal to reach a conclusion that in the face of the matters identified by the Tribunal, there was a basis for reaching an adverse finding on credit.  The Tribunal was entitled to act as it did and was entitled to accept or reject the claims. 

22. That being so, the second ground of appeal fails. 

23. The third ground of appeal is that the Tribunal ignored the truth of the matter, namely, the fact that the appellant would be in danger should he return to the People’s Republic of China.  Of course, that contention falls away once the Tribunal reaches the conclusion that it cannot accept the claims of the appellant as being truthful, frank and correct.  The conclusion that the Tribunal cannot be satisfied that the appellant has a well‑founded fear of persecution for a Convention reasons naturally flows from the conclusions reached on the primary factual matters as to credit.

24. One further matter requires to be addressed and it is this.  The appellant appeared today on his own behalf and was assisted by an interpreter and helpfully, I might say, assisted by the interpreter.  It became apparent during the course of some of the argument that the appellant was referring to the Court Book which was the Court Book from the proceedings before Federal Magistrate Scarlett, rather than the Appeal Book for these proceedings.  Exhibit 1 is a letter written by the solicitors on behalf of the respondents by which a copy of the Appeal Book was sent to the appellant on 31 August 2007 to the address nominated by the appellant in the notice of appeal which is the same address to which other correspondence has been addressed by the respondents.

25. In fact, a letter dated 30 October 2007 was presented to me by the appellant which demonstrates that the appellant received the outline of submissions from the respondents at the same address.  I raised the question of whether or not the appellant was disadvantaged by not having the Appeal Book before him today.  However, it should be noted that the only difference between the Court Book and the Appeal Book is that the Appeal Book contains a copy of the reasons of Federal Magistrate Scarlett which were delivered ex tempore (and the appellant was present for the ex tempore reasons); and secondly, a copy of the notice of appeal which, of course, in any event, is the appellant’s document.  A copy of the Appeal Book was made available to the appellant in the course of argument. 

26. It seems to me that because the Appeal Book and the Court Book are otherwise identical, the appellant is not disadvantaged by having reference to the Court Book in preparation.  Notwithstanding that, it would seem that the appellant was provided with the Appeal Book in any event.  It follows from what I have said therefore that there is no demonstrated error of law on the part of Federal Magistrate Scarlett. 

1. What necessarily follows is that the appeal must be dismissed with costs. 

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated:        5 November 2007

Solicitor for the Appellant	Self Represented
Counsel for the First Respondent:	Mr J Mitchell
Solicitor for the First Respondent:	DLA Phillips Fox
Date of Hearing:	5 November 2007
Date of Judgment:	5 November 2007