SZKII v Minister for Immigration and Citizenship

[2008] FCA 144

FEDERAL COURT OF AUSTRALIA

SZKII v Minister for Immigration & Citizenship [2008] FCA 144

Migration Act 1958 (Cth) ss 420, 424A

Abebe v Commonwealth of Australia (1999) 197 CLR 510 cited
SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 cited
SZKII v Minister for Immigration & Anor [2007] FMCA 1591 considered

SZKII v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1919 OF 2007

BENNETT J
21 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1919 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKII
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	21 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellants are 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 1919 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKII
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE:	21 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. The appellants are husband and wife and are citizens of China.  Their claim is based upon the husband’s claim to fear persecution for reason of his political opinion.  I shall refer to the appellants compendiously as ‘the appellant’.  The appellant’s application for a Protection (Class XA) visa was refused by a delegate of the Minister.  On an application for review the delegate’s decision was affirmed by the Tribunal.  An application for judicial review of the Tribunal’s decision was dismissed by Scarlett FM (SZKII v Minister for Immigration & Anor [2007] FMCA 1591).

   FINDINGS OF THE TRIBUNAL

2. Before the Tribunal the appellant confirmed that he had come to Australia to visit his sister–in-law and not for a refugee related reason.  He claimed that his political opinions had changed since he came to Australia and that, because of that change and actions that he took in Australia, he feared persecution upon return to China. 

3. The Tribunal, in its reasons, set out the appellant’s claims.  During the course of the hearing the Tribunal alerted the appellant to its concerns about the veracity of his claims and also noted that the Tribunal had serious doubts about what the appellant had said at the hearing concerning his political opinions and activities in Australia.  The Tribunal found the appellant to be ‘a witness of low credibility’.  It found that much of his evidence at the hearing was ‘vague and evasive’.  It found the appellant’s account at the hearing of how he changed his political opinion and the end result of that to be ‘entirely unconvincing’. 

4. The Tribunal gave reasons for those conclusions by reference to the appellant’s claims.  It did not accept that his political opinion had changed at all and concluded that the claim was a fabrication. 

   APPEAL TO THE FEDERAL MAGISTRATES COURT

5. Before Scarlett FM the appellant raised two grounds of review (at [22]-[23]). First, the appellant claimed that the Tribunal had failed to afford him the benefit of the doubt and rejected his claim on unreasonable grounds. Secondly, he claimed that the Tribunal failed to comply with the requirements in s 424A of the Migration Act 1958 (Cth) (‘the Act’).

6. The Federal Magistrate, in dealing with the grounds raised before him, found that the first ground was a claim for merits review and thus not open on judicial review (at [28]).  His Honour concluded that there was no jurisdictional error on the part of the Tribunal as its credibility findings were open to it on the evidence.

7. In relation to the second ground, his Honour concluded that the Tribunal’s decision was based entirely on evidence obtained from the appellant and thus fell within s 424A(3)(b) of the Act. The Tribunal’s own doubts by reason of its reasoning process or inconsistencies in relation to the appellant’s evidence were not, his Honour said, information for the purposes of s 424A (at [30]-[31] citing SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [18]).

   THE CURRENT APPEAL

8. In his notice of appeal the appellant raises the following grounds:

   1.The appellant believes the Tribunal rejected his claims on no reasonable grounds.  The appellant claims that he has a fear of returning to China due to the facts that he renounced his membership of Chinese Communist Party in Australia and has became [sic] a political dissident. In the decision the Tribunal repeatedly said it does not accept his claims, but it never gives a sound reason. It breached the s 420 of the Migration Act, which requires the Tribunal to be fair and just when conducting a review.

   2.The [Tribunal] decision was affected by jurisdictional error in that the Tribunal failed to invite the applicant to comment on adverse information. The Tribunal breached s 424A of the Migration Act. The Tribunal found the oral evidence the applicant gave was vague and evasive. The Tribunal never said this to the applicant during the hearing, and the applicant did no[t] think his evidence was vague and evasive.  The appellant claims that the Tribunal should ask him to provide more details [sic] evidence.  The Tribunal should have said to him that his evidence was vague and evasive, and then he would have given more evidence to the Tribunal. 

9. The appellant, who appears in person assisted by an interpreter, made no submissions in elaboration of those grounds, either in writing or orally at the hearing. 

10. As to the first ground the Tribunal provided reasons for its conclusions. I see no reason from the Tribunal decision, nor is there any evidence, to support a breach of s 420 of the Act. To the extent that this ground raises merits review I agree with Scarlett FM that the Tribunal’s findings were reasonably open to it on the evidence and material before it and not susceptible to judicial review.

11. As to the second ground the appellant has not identified any information that the Tribunal was obliged to provide to him under s 424A(1) of the Act. As his Honour concluded (at [32]), the appellant’s own evidence, on which the Tribunal’s decision was based, falls within the exception in s 424A(3)(b). The Tribunal was not obliged to put to the appellant the Tribunal’s own reasoning or inconsistencies that it found in the appellant’s evidence. The Tribunal’s subjective appraisals of the evidence do not amount to information for the purposes of s 424A (SZBYR at [18]). Further, the Tribunal is not obliged to make the appellant’s case for him (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 576 per Gummow and Hayne JJ).

    CONCLUSION

12. It follows that the appellant has not demonstrated jurisdictional error on the part of the Tribunal nor error on the part of the Federal Magistrate.  The appeal must be dismissed.  The appellants are to pay the first respondent’s costs.

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:        22 February 2008

The Appellant was self represented.
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	21 February 2008
Date of Judgment:	21 February 2008