SZKKN v Minister for Immigration and Citizenship

[2008] FCA 243

FEDERAL COURT OF AUSTRALIA

SZKKN v Minister for Immigration and Citizenship [2008] FCA 243

SZKKN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2117 OF 2007

MIDDLETON J
25 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2117 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKKN
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MIDDLETON J
DATE OF ORDER:	25 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the first respondent, fixed at $3,000.

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 2117 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKKN
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MIDDLETON J
DATE:	25 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal from a judgment of Nicholls FM of the Federal Magistrates Court given on 5 October 2007 dismissing an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  That decision affirmed a decision of a delegate of the first respondent (‘the Minister’) refusing an application for a protection visa.

   BACKGROUND

2. The appellant is a citizen of the People’s Republic of China.  The appellant arrived in Australia on 15 September 2006 and on 13 October 2006 she lodged an application for a protection (class XA) visa.  After the Minister’s delegate refused the appellant’s protection visa application on 4 November 2006 she applied on 30 November 2006 to the Tribunal to review that decision. 

3. Before the Tribunal, the appellant claimed to have worked as an accountant for her boyfriend’s construction team and to have been instrumental in seeking outstanding monies owed by the company.  The appellant claimed that her boyfriend was arrested by the Public Security Bureau (‘PSB’) and sent to do hard labour on a construction site in Jianxi Province, where he contracted an illness and later died.  As a result, the appellant claimed that she was motivated to help send corrupt officials to court for punishment.

4. For this reason, the appellant claimed that she sought out the company administration and several government agencies in order to obtain the money owed.  This led to harassment from the corrupt officials and the PSB, culminating in her arrest in May 2006 after organising a sit-in protest demanding compensation for her boyfriend’s death.  The appellant claimed that she was detained for a month, denounced as ‘anti-government’ and only released upon payment of a bribe by her family.  She claimed that she was still required to report to the PSB regularly.

5. The appellant claimed she had to leave the country with a passport that was not in her name after the police came with an arrest warrant issued when she had not reported to the PSB.

6. At the hearing, the appellant raised the additional claim that she had been abducted and severely abused by Chinese police on 10 September 2006.  She also claimed to fear ‘spies’ who she claims are based in Australia.

   THE TRIBUNAL’S DECISION

7. The appellant attended a hearing on 15 January 2007 and gave oral evidence to the Tribunal.  The appellant was assisted by a Mandarin interpreter.

8. The Tribunal accepted with some doubt that the appellant was who she claimed to be in her application.

9. The Tribunal found that the appellant was not a witness of truth, and did not accept that she had been detained or mistreated by Chinese police or authorities for the reasons claimed.  The Tribunal found that details relating to her activities were not genuinely recalled by the appellant, but were invented by her at the hearing to give authenticity to her claim of protection.  This was particularly so insofar as the claim to have been abducted on 10 September 2006 was concerned; the failure to mention an incident of such importance in the initial application made it unlikely in the Tribunal’s eyes that this claim was genuine.

10. To the extent that the appellant claimed to fear harm if forced to return to China because she was being spied upon in Australia, the Tribunal found that the claim had been invented.

11. The Tribunal was not satisfied on the evidence before it that the appellant had a well-founded fear of persecution for a Convention reason.

    PROCEEDINGS IN THE COURT BELOW

12. Before the Federal Magistrate, the appellant essentially raised two grounds. First, that the Tribunal did not comply with s 424A(1) of the Migration Act 1958 (Cth) (‘the Act’), and second, that the Tribunal failed to fulfil its obligations under s 425(1) of the Act. In particulars lodged on 19 September 2007, the appellant made the further claims that the Tribunal’s decision was illogical and that it was biased.

13. His Honour found that the Tribunal’s decision in relation to evidence submitted at the hearing was open to it, and that it was open to it to reject the appellant’s explanation of why she had omitted key claims from her initial application. No breach of s 424A was occasioned as the Tribunal’s assessment of the evidence before it because it was not ‘information’ for the purposes of s 424A(1).

14. On the issue of s 425, his Honour found that the appellant had raised a new claim relating to her abduction by Chinese police officers, and that this was not a case of the appellant providing further details about her claim.  The Tribunal had not mischaracterised her submissions and this ground accordingly failed.  The Tribunal had moreover raised the determinative issue of her credibility with the appellant at hearing, and as a result she could not complain of a denial of procedural fairness.

15. In relation to the allegation of bias his Honour found that this failed as the appellant did not provide evidence.  The fact that the Tribunal did not believe her claims does not reveal bias on its part.  The Federal Magistrate stated at [31]:

    The Tribunal told the applicant at the hearing that the credibility of her claims was an issue in its consideration and further, that it doubted that she was telling the truth because she raised new matters for the first time at the hearing.  I cannot see that this was a position to which the Tribunal was conclusively predisposed before the hearing as, on the facts, the issue of the new matters arose at the hearing itself.

16. His Honour accordingly found that the Tribunal’s decision disclosed no jurisdictional error and dismissed the case.

    THE APPEAL TO THIS COURT

17. The appellant commenced the present proceedings by notice of appeal filed on 26 October 2007 raising two grounds of appeal with particulars.  The first ground asserted simply that the Federal Magistrate erred in law.  The second ground claimed that the Federal Magistrate was wrong in finding that the Tribunal had acted properly in its findings.  Numerous particulars were provided in support of this ground which included that the Federal Magistrate:

    1.erred in finding that the Tribunal had complied with its obligation under s 424A(1);

    2.was wrong in finding that the Tribunal assessed the application fairly and properly.  The Tribunal made an illogical and perverse conclusion and failed to assess evidence favouring the appellant;

    3.erred in finding that the Tribunal had complied with s 425; and

    4.erred in not finding that the Tribunal’s decision was biased.

    CONCLUSION

18. One attack appears to be upon the credibility findings of the Tribunal.  The Tribunal’s credibility conclusions are findings of fact: Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407 at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v MIMA (1998) 86 FCR 547 at 558-559; W148/00A v MIMA (2001) 185 ALR 703 at [64]-[69]. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].

19. The notice of appeal seems otherwise to simply repeat the grounds that failed before his Honour.  No explanation is provided as to the error to be found in his Honour’s reasoning.  I can ascertain no such error.

20. It seems to me by the oral submissions of the appellant today that the appellant’s main complaint is about the factual findings of the Tribunal and the Federal Magistrate.  The appellant also seemed to suggest that she wanted to put more material before this Court to show the factual findings below were incorrect, but she did not specifically identify that material, other then by a general reference. 

21. Nothing said to me by the appellant persuades me that the Tribunal or Federal Magistrate fell into jurisdictional error.

22. In my opinion, the approach of the Federal Magistrate and his Honour's conclusion were correct, and the appeal should be dismissed.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Associate:

Dated:        5 March 2008

Counsel for the Appellant:	Self-represented
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	25 February 2008
Date of Judgment:	25 February 2008