SZKIB v Minister for Immigration and Citizenship

[2008] FCA 1386

FEDERAL COURT OF AUSTRALIA

SZKIB v Minister for Immigration & Citizenship [2008] FCA 1386

SZKIB v Minister for Immigration [2008] FMCA 769 considered

SZKIB v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 930 OF 2008

BENNETT J
27 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 930 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKIB
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	27 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant to pay the first respondent’s costs.

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 930 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKIB
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE:	27 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of the People’s Republic of China.  She applied for a protection visa on 13 September 2006. The application was refused by a delegate of the Minister on 10 October 2006. In a decision signed on 29 October 2007, the Refugee Review Tribunal affirmed the decision of the delegate.  This was the second decision of the Tribunal in relation to the appellant’s application for a protection visa.  An application for review of the second Tribunal decision was dismissed by Smith FM (SZKIB v Minister for Immigration [2008] FMCA 769).

2. The appellant claimed to fear persecution in China due to her implied anti-government opinion.  Her claims related broadly to the fact that her husband had been imprisoned and to her own activities following her husband’s imprisonment in connection with a teacher, Ms L.  The Tribunal accepted that the appellant’s husband had been imprisoned but it did not accept the appellant’s claims in relation to her own actions which formed the basis of her claim to fear persecution.  The Tribunal was not satisfied that the appellant had distributed petitions prepared by Ms L or organised a protest after Ms L was arrested.  Those findings were based upon the Tribunal’s assessment of the appellant’s credibility.

3. The Tribunal concluded that it was not satisfied that the appellant was a person to whom Australia has protection obligations under the Convention, and it affirmed the decision of the delegate of the Minister not to grant a protection visa to the appellant.

4. On an application for review of the Tribunal’s decision to the Federal Magistrates Court, Smith FM dismissed the application.  Among the matters considered, his Honour rejected the ground that the Tribunal’s decision demonstrated a reasonable apprehension of bias (at [16] and [17]). His Honour formed the view that the appellant’s complaints addressed the merits of the conclusion arrived at by the Tribunal (at [16]).

5. In the notice of appeal from the decision of Smith FM, the appellant raises the following grounds:

   1.The learned Federal Magistrates erred in finding that the Refugee Review Tribunal (“the Tribunal”) made its decision properly and impartially.

   2.As a matter of fact, the Tribunal’s decision has included a reasonable apprehension of bias. It is the indisputable evidence that [Ms L] did take a risk of distributing petitions even if my relationship with [Ms L] was anything more than a parent/teacher relationship (original emphasis) … .

   3.The learned Federal Magistrates failed to consider properly and fairly that it must be an apprehensive bias that the Tribunal only thought that those, who had particular important relationship with each other, would strive for basic human rights and would seek the justice and would to express their own opinions.

   4.The learned Federal Magistrates failed to consider properly and fairly that the Tribunal has accepted that my husband was imprisoned; but the Tribunal failed to consider, fairly and properly, that I, as a wife of the person who would be wrongly imprisoned for 10 years, would be definitely subjected to serious discriminations and persecution under the Communist dictatorship; and the Tribunal failed to consider that my livelihood and freedom would be threatened, seriously and continually, owing to my particular relationship with my husband. …

   5.In summary, I do not think that my application for judicial review has been considered by the learned Federal Magistrates properly and fairly.

6. These grounds of appeal can broadly be placed into the following three categories:

   1.That the Tribunal decision was infected by bias or the Tribunal displayed an apprehended bias in relation to the appellant’s claims.

   2.That the Tribunal did not believe the appellant even though she was telling the truth.

   3.That the Tribunal failed to consider the appellant’s claims.

   Category 1 – bias or apprehended bias

7. The appellant, who appears before me in person assisted by an interpreter, particularised the ground of bias or apprehended bias at the hearing by saying that the Tribunal did not believe her claims.  She asserted that everything that she had said to the Tribunal had been true but the Tribunal thought incorrectly that she was lying.  The appellant was unable to point to any particular basis to found the allegation of bias or apprehended bias.  The appellant had received two tapes of the transcript of the Tribunal hearings but did not present any evidence in support of her allegation to the Federal Magistrate or to this Court.  There was no transcript evidence before the Federal Magistrate.

8. The appellant has explained this by saying from the bar table that she had no money and did not know that she should present a transcript. However, the fact remains that she is unable to point to any matter in support of the serious allegation of bias or in support of a finding of an apprehension of bias on the part of the Tribunal.

   Category 2 – the Tribunal did not believe the appellant

9. The other matters raised by the appellant go to the merits of the Tribunal’s decision.  In her notice of appeal the appellant refers to evidence of the relationship between herself and Ms L that was not accepted by the Tribunal.  Before me she reiterated that the Tribunal simply did not accept that there could be a person of Ms L’s characteristics and with Ms L’s sense of justice.  Again, those matters go to the merits of the Tribunal’s decision, which is not properly the subject of consideration by me and does not found jurisdictional error.

   Category 3 – did the Tribunal consider the aspects of the appellant’s claims?

10. Again, the appellant was unable to point to any aspect of her claims that the Tribunal failed to consider.  She did refer to the fact that her husband was imprisoned but the Tribunal accepted that claim.  The Tribunal’s statement of reasons is extensive and discusses in some detail the relationship between the appellant and Ms L upon which she relies, the actions of Ms L and the actions that the appellant says that she undertook. The Tribunal discussed in some detail the reasons why it did not accept the appellant’s claims in that regard.  Federal Magistrate Smith noted that the appellant seemed to challenge only the merits of the reasoning adopted by the Tribunal when the case was before him.  The same has happened on this appeal.

11. His Honour was not able to find any of the elements of unreasonableness in the reasoning of the Tribunal which would allow a conclusion of bias or apprehension of bias.  I find no error in his Honour’s reasoning or in the conclusion that he reached.  It follows that I am unable to find jurisdictional error on the part of the Tribunal or error on the part of the Federal Magistrate.

12. Accordingly the appeal should be dismissed. The appellant is to pay the first respondent’s costs of the appeal.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:        10 September 2008

The Appellant was self represented.
Counsel for the Respondents:	Mr P D Reynolds
Solicitor for the Respondents:	Clayton Utz

Date of Hearing:	27 August 2008
Date of Judgment:	27 August 2008