SZKLY v Minister for Immigration & Citizenship

[2007] FCA 1726

FEDERAL COURT OF AUSTRALIA

SZKLY v Minister for Immigration & Citizenship [2007] FCA 1726

IN THE MATTER OF SZKLY v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1418 OF 2007

JACOBSON J
8 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1418 OF 2007

BETWEEN:

SZKLY
APPELLANT

AND:

Minister for Immigration & Citizenship
FIRST RESPONDENT

Refugee Review Tribunal
SECOND RESPONDENT

JUDGE:

Jacobson J

DATE OF ORDER:

8 November 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the costs of the first respondent 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
NEW SOUTH WALES DISTRICT REGISTRY	NSD1418 OF 2007

BETWEEN:

SZKLY
APPELLANT

AND:

Minister for Immigration & Citizenship
FIRST RESPONDENT

Refugee Review Tribunal
SECOND RESPONDENT

JUDGE:	Jacobson J
DATE:	8 November 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of Scarlett FM, given on 10 July 2007.  His Honour dismissed an application for review of a decision of the Refugee Review Tribunal dated 21 February 2007 and handed down on 15 March 2007.  The Tribunal affirmed a decision of a delegate, refusing to grant the appellant a protection visa. 

2. The appellant is a citizen of China, who arrived in Australia on 28 June 2006.  He applied for a protection visa on 2 August 2006, the delegate refused to grant the visa on 30 October 2006. 

3. The appellant claimed to have a well-founded fear of persecution upon the ground that he was involved in union activities in China.  He claimed that he could not get protection from the harm that he fears in China.  He told the Tribunal that he left China because of the assistance that he gave to fellow workers in Fuqing province, where he said he lived between 1996 and 2005. 

4. The Tribunal did not accept the appellant as a credible witness.  It found that he had lived in Hong Kong from about 1995, or 1996.  The Tribunal referred to the evidence, given by the appellant in the Tribunal, that both his parents lived in Hong Kong.  It also referred to evidence that showed that the appellant had held a British Hong Kong passport since about 1996 and he then had a passport issued in 2002 by the Hong Kong Special Administrative Region.  That passport was replaced in October 2005, because it was damaged. 

5. The Tribunal also referred to the appellant’s oral evidence that his wife lived in Hong Kong.  The Tribunal accepted that the appellant’s marriage may have broken down, but it did not consider it to be plausible that the appellant did not live with his wife in Hong Kong, or that he rarely visited her there after they were married in 2000. 

6. The Tribunal stated that in its view the appellant tried to distance himself throughout the hearing from his obvious connections with Hong Kong.  The Tribunal found that the appellant invented the claim that he lived and worked in Fuqing Province, so as to assist his application for a protection visa.

7. Since the Tribunal did not accept that the appellant was a credible witness, it did not accept that he was involved with union activities in Fuqing Province, as he had claimed.  In short, it did not accept the basis upon which he claimed to have a well‑founded fear of persecution, apparently on political grounds. 

8. The appellant set out three grounds of review in his application in the Federal Magistrates Court.  The first ground was that the decision was an improper exercise of the power.  The second was that the decision of the Tribunal involved an error of law.  And the third was there was no evidence, or material to justify the decision.

9. Federal Magistrate Scarlett dealt with each of these grounds of review. He rejected the first ground because the Tribunal dealt with the appellant’s claims: it invited him to a hearing pursuant to s 425 of the Migration Act 1958 (Cth) and he gave evidence at the hearing, with the assistance of a Mandarin interpreter. The Federal Magistrate observed that the finding of adverse credibility was reasonably open, and in such a case the finding of the Tribunal is not open to judicial review.

10. The learned Federal Magistrate pointed out that although the appellant claimed that the decision of the Tribunal involved an error of law, he did not specify any error, other than to say that the Tribunal only asked him questions about his family, which was not the reason why he lodged his application.

11. Scarlett FM said that this was not an error of law and it was clear from the reasons given by the Tribunal that it asked questions of the appellant about the key points made by him in his claim to have a well-founded fear of persecution. 

12. As to the claim that there was no evidence or material to justify the Tribunal’s decision, Scarlett FM pointed out that this was not a ground of review, because it is for an applicant to provide evidence to satisfy the Tribunal that he or she meets the criteria for the issue of a protection visa. 

13. The notice of appeal is in precisely the same terms as the grounds of review that were claimed before Scarlett FM.  I can see no error in the reasons given by the learned Federal Magistrate.

14. The appellant appeared today without legal representation.  He did not file any written submissions and he addressed me, very briefly, in support of his appeal.  He said that the sole purpose he came to Australia is to be protected by the Australian Government in order to avoid the disturbance, which he said he suffered in Hong Kong.  He complained that he was not believed on the evidence that he had given before the Tribunal. 

15. It is plain, in my view, that no error is disclosed in the reasons given by Scarlett FM.  The short answer to the appellant’s arguments can be found in what was said recently by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25].

16. Their Honours observed that:

    “What is required by procedural fairness is a fair hearing, not a fair outcome.”

17. They referred to the observations of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36. Their Honours went on to say:

    “It is…not to the point to ask whether the Tribunal’s factual conclusions were right.

    The relevant question is about the Tribunal’s processes, not its actual decision.”

18. Nothing has been put before me to suggest any defect in the Tribunal’s processes or any error in the Federal Magistrate’s decision that rejected the grounds of review of the Tribunal’s decision. 

19. For those reasons I propose to order that the appeal be dismissed.

20. The orders that I will make are as follows:

    (1)   That the appeal be dismissed.

    (2)   That the appellant pay the costs of the first respondent of the appeal.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:             15 November 2007

The Appellant was self-represented.
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	8 November 2007
Date of Judgment:	8 November 2007