SZKRK v Minister for Immigration and Citizenship

[2007] FCA 1821

FEDERAL COURT OF AUSTRALIA

SZKRK v Minister for Immigration & Citizenship [2007] FCA 1821

Migration Act 1958 (Cth) ss 424A, 425

SZBYR v Minister for Immigration & Citizenship (2007) 185 ALR 609 cited
SZKRK v Minister for Immigration [2007] FMCA 1384 considered
NACB v Ministerfor Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 cited
VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 cited

SZKRK v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1701 OF 2007

BENNETT J
20 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1701 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKRK
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	20 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

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

3.If the first respondent seeks an order for fixed costs he should forward to my chambers evidence in support within seven (7) days.

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 1701 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKRK
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE:	20 NOVEMBER 2007
PLACE:	SYDNEY  (HEARD VIA VIDEO LINK)

REASONS FOR JUDGMENT

BACKGROUND

1. The appellant is a citizen of the People’s Republic of China who applied for a Protection (Class XA) visa under the Migration Act 1958 (Cth) (‘the Act’). The application was refused. The appellant applied to the Refugee Review Tribunal for a review of the refusal. The Tribunal affirmed the decision not to grant the protection visa as it was not satisfied that the appellant is a person to whom Australia has protection obligations under the Refugees Convention.

2. The appellant told the Tribunal that he had worked as a painter and had worked for a man who then invited him to join his construction team.  His employer entered into a contract with the Nanchang City No. 1 Construction Engineering Corporation (‘the Construction Corporation’).  The appellant and other painters commenced work but were not paid.  The appellant and others with him engaged in a demonstration in relation to the absence of payment.  He and two others were arrested by the police and sent to a detention centre (‘the Nanchang detention centre’) where he said he was detained from May 2005 until March 2006 and where he said he was badly treated.  The appellant was released but later detained again by authorities in Longtian.  He described in his statutory declaration and before the Tribunal matters relevant to that detention, which matters were repeated in the Tribunal’s reasons. 

3. After the hearing the Tribunal wrote to the appellant setting out a number of items of information including a reference to independent country information (‘the s 424A letter’). In the s 424A letter the Tribunal also referred to parts of the appellant’s evidence to the Tribunal. The Tribunal set out why it believed that the information was relevant and why the information, if not replied to, would be detrimental to the appellant’s claim. The appellant replied to the s 424A letter.

4. In its reasons the Tribunal set out the appellant’s claims in some detail. It noted that it had put to the appellant at the hearing and subsequently in the s 424A letter the matters about which it had grave concerns, involving differences in the accounts given by the appellant in writing and at the hearing and what the Tribunal described as ‘the far-fetched and/or coincidental nature of a number of points in the testimony’.  The Tribunal did not accept that the appellant had been detained as he had described, either on the first occasion in the Nanchang detention centre or subsequently by the Longtian authorities.  The Tribunal rejected the appellant’s story as implausible and gave detailed reasons for that conclusion.

   THE FEDERAL MAGISTRATE’S DECISION

5. The appellant’s application for judicial review came before Scarlett FM (SZKRK v Minister for Immigration [2007] FMCA 1384).

6. Three grounds were considered by his Honour. The first ground was that the Tribunal ignored or failed to consider important evidence submitted after the hearing, namely the appellant’s reply to the s 424A letter (at [12]). His Honour concluded that the Tribunal did consider the material (at [17]).

7. The second ground was that the Tribunal failed to comply with its obligations under s 424A(1) of the Act (at [13]). His Honour concluded that the independent country information appeared to him to come within s 424A(3)(a) of the Act (at [18]) but noted that, in any event, all of the material was put to the appellant after the hearing in the s 424A letter (at [19]).

8. The appellant also alleged that there was bias or bad faith on the part of the Tribunal (at [20]).  His Honour found that there was no evidence to support such an allegation, which, as he noted, must be strictly alleged and strictly proved and he declined to make a finding in that regard (at [20]).

9. The third ground was the appellant’s claim that the Tribunal failed to comply with its obligations under s 425 of the Act (at [14]). His Honour could not find any such breach of the obligations under that section (at [21]).

10. His Honour considered each of the matters in the application and noted that he had himself read the decision and supporting materials and could not identify any other arguable ground of review.  His Honour was satisfied that there was no jurisdictional error in the Tribunal’s decision (at [17]).

    THE CURRENT APPEAL

11. The notice of appeal reflects the substance of the grounds that were raised before Scarlett FM.  They are described as particulars of two grounds, being a claim that the Federal Magistrate erred in law and an assertion that the Federal Magistrate was wrong in his finding that the Tribunal acted properly. 

    The first particular

12. The first particular asserts that the Tribunal ignored important evidence. What follows is a repeat of the appellant’s response to the s 424A letter. No specific evidence is pointed to.

13. To the extent that this particular raises an attempt at merits review, that is not a matter for the Court.  I do not see any matter raised in the response with which the Tribunal did not deal.  The appellant, who appears before me in person assisted by an interpreter, has not pointed to any evidence set out in the particulars of his notice of appeal that he can say the Tribunal did not deal with.

14. The appellant now raises one additional matter.  He claims that he was tortured while in detention and that he has physical scars that reflect that torture.  He says that he did not show the scars to the Tribunal for what seems to be two reasons.  First, he was not sure if it was appropriate to show the scars to the female Tribunal member.  Secondly, he asserts that he wished to show those scars to the Tribunal member but that she did not give him the time or the opportunity to do so.  I will return to the second matter.

15. If the appellant did not show the scars to the Tribunal member or make allegations specifically of torture, then it was not a claim made to the Tribunal and the Tribunal was not obliged to address it. Indeed, the Tribunal would not have known about it. I note that there is no reference to a claim of torture in the statutory declaration in support of his application for a protection visa, in the Tribunal’s recitation of the case put by the appellant in writing or orally in the Tribunal, in the s 424A letter or in the Federal Magistrate’s reasons. This is despite the fact that the appellant did set out in his written material what he said were the indices of his treatment while in detention.

16. There is no transcript of the hearing before the Tribunal in evidence that would assist in ascertaining whether or not the appellant attempted to make such a claim to the Tribunal.  In the circumstances I am not satisfied that such a claim was made. 

    The second particular

17. The second particular is simply an assertion that the Federal Magistrate erred in his conclusion that at least one of the appellant’s claims was an attempt to conduct a merit review.  This particular does not really represent a ground of appeal.  I see it as a particular of the general ground that the Federal Magistrate erred in law. 

18. The decision of the Tribunal was based on adverse credibility findings, based on evidence provided at the hearing and the written material of the appellant.  To the extent that this particular is an assertion that the Tribunal relied on assumption and ignored the appellant’s evidence, the appellant did not point to any assumption that was made by the Tribunal.  The Tribunal gave a detailed explanation in its reasons of how it came to its conclusion that the appellant was not truthful or credible.  Those findings were a matter for the Tribunal and were open on the evidence before it.  This does not need to be dealt with further.

    The third particular

19. In the third particular the appellant asserts that the Tribunal ‘significantly misstated the effect of my evidences’, that the Tribunal made conclusions that were not open to it on the evidence and that it failed to address significant evidence. The appellant was unable to point to any specific matter that the Tribunal had misstated. The Tribunal’s reasons set out in detail the statutory declaration in support of the application and also the responses to the s 424A letter. I do not see that the Tribunal misstated the appellant’s evidence in its recitation of it.

20. To the extent that this raises the allegation of torture, I have dealt with it already.

21. To the extent that this particular may also assert illogicality or irrationality on the part of the Tribunal, such a ground is not made out.  In any event, mere illogical reasoning does not of itself constitute jurisdictional error (NACB v Ministerfor Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [30]; VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 at [18]).

22. To the extent that this particular raises an allegation of bias, there is no evidence to support the claim and no particulars to explain it.  Allegations of bias or an apprehension of bias are serious and must be supported and made out.  There is no suggestion in the Tribunal’s reasons and no matter raised by the appellant to support such an allegation.  There is no suggestion that the decision maker was not open to persuasion.  Such a claim is rejected.

    The remaining particulars

23. The remaining three particulars raise allegations of bias, matters under s 424A of the Act and the conduct of the hearing. I have already dealt with the allegations of bias.

24. I have already noted that the Tribunal sent to the appellant the s 424A letter. This was done before the decision of the High Court in SZBYR v Minister for Immigration & Citizenship (2007) 185 ALR 609. In any event, it cannot be said that there was any failure to comply with any obligation that may have existed on the part of the Tribunal. The Tribunal set out all of the particulars of the matters of concern, explained to the appellant why those matters were of concern and gave the appellant the opportunity to respond. The introduction included the independent country information that the Tribunal had consulted concerning the Construction Corporation and its activities and a major earthquake that took place in the north of Jiangxi Province at a relevant time. That information comes within s 424A(3)(a) of the Act. In any event, the Tribunal put all of the material to the appellant and I can see no breach of s 424A(1).

    An additional particular

25. During the hearing the appellant raised an allegation that the Tribunal failed to give him the opportunity to present all of his material.  Specifically, he says that he was not given enough time to present his case to the Tribunal member.  There is no evidence to support that allegation and I note that it was not made to Scarlett FM.  As I have said, the Tribunal gave a very detailed discussion of all of the matters put to it, not only from the written material provided by the appellant but also from the oral evidence.  The Tribunal’s account of the hearing describes a detailed number of questions put to the appellant and responses from him.  This indicates that the Tribunal member took the time to question the appellant during the course of the hearing.  In addition, the hearing notes of the Tribunal, which are in evidence, indicate that the hearing took place over two and a half hours.  I am not satisfied that the Tribunal improperly shortened the hearing or failed to give the appellant the opportunity to present his case.

    Conclusion

26. I am not satisfied that any of the grounds of appeal, either as raised in the written notice of appeal or as raised at the hearing of this appeal, have been made out.  I do not see that there has been any jurisdictional error on the part of the Tribunal or any error on the part of the Federal Magistrate.  It follows that the appeal should be dismissed.

27. The appellant is to pay the first respondent’s costs.  If the first respondent seeks an order for fixed costs, he should forward to my chambers evidence in support within seven (7) days.

I certify that the preceding twenty seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:        26 November 2007

The Appellant was self represented
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	20 November 2007
Date of Judgment:	20 November 2007