SZKLJ v Minister for Immigration and Citizenship

[2008] FCA 1162

FEDERAL COURT OF AUSTRALIA

SZKLJ v Minister for Immigration and Citizenship [2008] FCA 1162

Migration Act 1958 (Cth) s 424A

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 cited
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 cited

SZKLJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD257 OF 2008

LOGAN J
4 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD257 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKLJ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	4 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The Appellant is to pay the First Respondent’s costs of and incidental to the appeal, including reserve costs, to be taxed if not agreed.

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	NSD257 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKLJ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE:	4 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have had the benefit of succinct submissions on behalf of both the Appellant and the First Respondent, the Minister for Immigration and Citizenship.  The Minister’s submissions highlighted, in turn, more detailed written submissions which have been lodged with the Court prior to the hearing of the appeal in accordance with interlocutory directions.  As a result, I have formed a clear view as to the outcome of this appeal and it seems to me, especially given that they will be able to be interpreted at once, as well as for basic reasons of humanity, that I ought to dispose of the appeal today rather than reserve my judgment and leave the Appellant wondering what the outcome might be.

2. The appeal is against a decision given on 11 February 2008 by the Federal Magistrates Court.  By that decision, the Federal Magistrate dismissed an application for the judicial review of a decision of the Refugee Review Tribunal (“Tribunal”).  On 7 February 2007, for reasons which it then published, the Tribunal had decided to affirm a decision made by a delegate of the Minister not to grant to the Appellant a visa known as a Protection (Class XA) Visa for which provision is made by and under the Migration Act 1958 (Cth). The Appellant had lodged an application for such a visa with the Department of Immigration and Citizenship on 4 August 2006. He had arrived in Australia the preceding month on 10 July 2006.

3. In support of his visa application the appellant had provided a statement dated 1 August 2006.  In that statement the Appellant related his having left China on what he described as “a contrived tour with some friends”.  He related that government authorities in China had taken land on which he lived with his wife and children in the Hebei Province and given it to developers.  He further related that, because he and his wife had not received enough compensation, they and their family could not survive.  He made a protest against this, but, “The corruptive government and the developers were on the same side.”  Police were sent to suppress the protest.  During the protest the Appellant claimed that he had fought with a policeman who had pushed his wife too hard.  He further claimed that he was then taken to a police station where he was severely beaten by a group of police and then released.  He related further that it had later come to his attention that the two organisers of the protest were sentenced to imprisonment for two years.  All of this, he claimed, occurred in July 2005.

4. In his statement the Appellant related that the impact of these events was that, if he returned to China, he would have no access to income or any other support.  He had previously worked as a farmer and, when farm work was not busy, as a cargo delivery driver.  Farming, though, he stated, had been his major source of income.  His apprehension, so he related, was that were he to return to China, the local government would prevent his seeking to bring his complaint in respect of the taking of his land for inadequate compensation to the attention of superior government officials.  The Appellant further related that he had left China in a hurry, and so he did not have particular supporting documents to provide.

5. When his claim for a protection visa was rejected by the Minister’s delegate, the Appellant, as was his right, sought the review of that decision by the Refugee Review Tribunal.  In the course of oral evidence at a hearing offered to him by the Tribunal, the Appellant made reference to his having recently taken up the following of the Falun Gong movement prior to his departure from China.  It is a noteworthy feature of the statement of 1 August 2006 that it makes no reference at all to his membership, for any length of time, of the Falun Gong movement.

6. In compliance with what it apprehended to be its obligation under s 424A of the Migration Act 1958, the Tribunal, by letter dated 10 January 2007, drew to the Appellant’s attention what it apprehended to be serious discrepancies between the information that the appellant provided in his visa application and the evidence which he had given that day, at the oral hearing.  Apart from highlighting differences in relation to confrontations with the police in 2005, the Tribunal also highlighted the absence of mention of involvement with Falun Gong in the protection visa application, and the reference to having practised it in China.  In the letter, the Tribunal stated that:

   This information is relevant because serious discrepancies in your written and oral evidence may indicate to the Tribunal that your account is lacking in credibility generally, and that your claims have been fabricated to support your application for a protection visa.

7. In so doing, it may well be that the Tribunal went strictly beyond the bounds of what 424A of the Migration Act required it to do. That is so because inconsistencies have subsequently been held not to constitute “information” for the purposes of that section: see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609. The Tribunal, though, is, with respect, hardly to be criticised for going beyond, in terms of procedural fairness, what s 424A of the Migration Act 1958 might otherwise have required of it.

8. As it happened, inconsistencies of the kind which the Tribunal had highlighted in its letter of 10 January 2007, informed credibility findings which the Tribunal came to make.  It is worthy of note that the Appellant made no response to the opportunity which the Tribunal had offered to him by its letter of 10 January 2007.  The result of the credibility findings which the Tribunal made was that it found that the Appellant had not suffered what it described as, “Convention-based persecution in the past”.

9. The result of that was that it found that it was not satisfied that there was a real chance that the Appellant would be seriously harmed for reasons of his real or imputed political opinion or membership of Falun Gong were he to be returned to China.

10. In the judicial review application to the Federal Magistrates Court the Appellant advanced as grounds of review the grounds that were essentially repeated as grounds of appeal to this Court.  So it was that the Appellant alleged as grounds of appeal that:

    The Federal Magistrates Court failed to properly deal with the applicant’s claim that the Refugee Review Tribunal failed to give the applicant information that the tribunal considers would be the reason, or part of the reason, for affirming the decision that was under review and the tribunal failed to invite the applicant to comment on it. By failing to do so the tribunal breached s 424A of the Migration Act 1958.

    The Federal Magistrates Court failed to properly deal with the applicant’s claim that the Refugee Review Tribunal failed to accept the applicant’s claims that they have become a Falun Gong practitioners in Australia.  The tribunal rejected this claim as it found the applicant had limited knowledge about Falun Gong.  By reaching this conclusion, the tribunal failed to take in to account the fact that the applicant only became a Falun Gong member recently.  By reaching such a finding, the tribunal did not follow the rule that if the tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that the claim might possibly be true. [sic]

11. The learned Federal Magistrate found that there was no substance in either of these grounds of review. The reasons for so finding are set out in those which were expressed ex tempore by his Honour on 11 February 2008. I respectfully agree with the reasons then given by the Federal Magistrate. I have already made reference to the manner in which the Tribunal sought to deal with its obligations under s 424A of the Migration Act 1958.  Especially as one might have apprehended the law to be, at the time when the Tribunal sent out its letter on 10 January 2007, there is no error in the practice adopted by the Tribunal.  To the contrary, and as I have already indicated, in light of later authority, that approach might be regarded as having gone beyond that which the section required. 

12. In respect of the other basis of challenge to the decision of the Federal Magistrate, that ground might be regarded as seeking to engage the “What if I am wrong?” approach.  The basis for that description can be found in the judgments delivered by the High Court in the Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. At para 24 of his reasons for judgment, the learned Federal Magistrate observed:

    The exercise of the Tribunal’s function clearly involves it in considering each claim, or integer or aspect of a claim, and to weigh the evidence and material before it, and to make findings upon which it may base its conclusion of whether or not an applicant’s fear of persecution for a Convention reason is well-founded.  If such a finding is not made with an appropriate degree or sufficiency of confidence, that is, if it is attendant with such a degree of doubt, then the Tribunal may need, in those circumstances, to consider the alternative, that is to consider that its finding may be incorrect and then to determine whether an applicant may have a well-founded fear in those circumstances.

13. His Honour, having made this observation, then makes reference to relevant supporting authority.  The passage quoted is, with respect, a useful summary of an obligation which can fall on the Tribunal having regard to what was said by the High Court in Guo.  As the Federal Magistrate plainly appreciated, if it is clear that the Tribunal had no real doubt as to the correctness of its findings it was not required to consider whether its findings might be wrong.  As the Magistrate, with respect, correctly observed the issue is the Tribunal’s apparent confidence in its conclusions.  Regard to the Tribunal’s reasons in this case gives no basis for an apprehension that the findings made were anything other than findings made with confidence.

14. Like the Federal Magistrate, I do not see that any obligation fell on the Tribunal to apply the “What if I am wrong test?”  The Federal Magistrate plainly appreciated that findings of fact, particularly those referable to credibility findings, were peculiarly matters for the Tribunal, not a court undertaking a judicial review role.  Even more so that is the case in respect of a court entertaining an appeal from the Federal Magistrates Court in such circumstances.  In other words, it is nothing to the point whether I or the Federal Magistrate, had we been exercising the powers of the Tribunal, would have been disposed to accept the Appellant’s claim for a protection visa notwithstanding particular inconsistencies or subsequent additions to the basis for the claim. So to do would be to go beyond the jurisdiction that is consigned to the Federal Magistrates Court and to this Court respectively. 

15. It follows then that I do not see any merit in either of the grounds of appeal.  In those circumstances the appeal must be dismissed. 

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated:        5 August 2008

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondents:	Ms Sirtes
Solicitor for the Respondents:	Clayton Utz

Date of Hearing:	4 August 2008
Date of Judgment:	4 August 2008