SZLCO v Minister for Immigration and Citizenship

[2008] FCA 650

FEDERAL COURT OF AUSTRALIA

SZLCO v Minister for Immigration and Citizenship [2008] FCA 650

Migration Act 1958 (Cth) s 424A

VWST v The Minister for Immigration and Multi-cultural and Indigenous Affairs [2004] FCAFC 286 considered
Re: Minister for Immigration and Multi-cultural Affairs, ex parte S20 of 2002 (2003) 77 ALJR 1165 considered

SZLCO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 247 OF 2008

LOGAN J
6 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 247 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLCO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	6 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the First Respondent’s costs, which are fixed in the sum of $1,203.81.

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 247 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLCO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE:	6 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The Appellant came to Australia on 27 July 2006.  He is a citizen of the People’s Republic of China.  In August 2006, he applied under the Migration Act 1958 (Cth) (“Migration Act”) for what is known as a protection visa.

2. In his application, he stated that he became a Falun Gong practitioner in 2001.  He made reference to his practice of Falun Gong being secret.  He stated that in 2002, he had been called to a police station for “brainwash”.  He made reference to his having been kept at the police station and stated, “I could hardly forget the suffering of those three days.”  He also then made reference to police coming to his home to talk to him and to pressure him to not attend Falun Gong activities.  He further stated that, “Recently when I found that we would have a trip to Australia, I bribed officers to put my name on the travelling list, I want to have a normal life and I want to have the freedom of belief.” 

3. On 9 September 2006, a delegate of the Minister refused the application for a protection visa.  Thereafter, as the Appellant was entitled, he sought the review of that decision by the Refugee Review Tribunal (“Tribunal”).  On 30 May 2007, and following a hearing in which the Appellant gave oral evidence in December 2006, the Tribunal decided to affirm the decision not to grant the Appellant a protection visa.  The Appellant then sought to challenge the Tribunal’s decision by way of a judicial review application in the Federal Magistrates Court.  On 13 February 2008, for reasons that were apparently given ex tempore that day, the Federal Magistrates Court dismissed his application with costs.

4. It is from that decision that the Appellant appeals to this Court.  The grounds of appeal in substance replicate the grounds of review that were raised before the Federal Magistrates Court.  They are as follows: 

   1.the Tribunal failed to understand the claims of my application because of the Tribunal’s bias against me.

   2.the satisfaction that I am not a refugee was not based on a rational and logical foundation.

   3.the Tribunal did not take into account the information provided in response to the s 424A letters.

5. Before descending into a discussion of the merits of those grounds, I should state, firstly, that I understand the appeal on those grounds to be in the nature of a submission that the Federal Magistrate ought to have set aside the Tribunal’s decision on one or more of those grounds and committed legal error in not so doing. 

6. Secondly, it is necessary to say something of the procedures before the Tribunal gave its decision, and of the Tribunal’s reasons. After it had conducted a hearing and before giving its decision, the Tribunal sent two letters to the Appellant, one on 19 March 2007, the other on 30 April 2007. The Tribunal evidently did this because of an apprehension that it was necessary so to do, having regard to the requirements of s 424A of the Migration Act.  The first of those letters recorded that:

   At the Tribunal hearing held on 18 December 2006 you told the Tribunal that the reason for your travel to Australia was that you intended to buy equipment from a company being used to process the electronics fitters, and you travelled for your employer, who paid for your trip.  You told the Department in your protection visa application that you bribed officers to put your name on a travelling list. 

7. Having highlighted these matters, the Tribunal has stated in that letter that such information was relevant, as it might lead the Tribunal to conclude that the appellant had not fled China fearing persecution, but came to Australia in order to undertake business.  The Tribunal further stated in that letter that this information might lead the Tribunal to conclude that the Appellant had provided inconsistent claims, such that he may not be regarded as a witness of truth. 

8. In the letter the Tribunal also highlighted that this information was also relevant, as it might lead the Tribunal to conclude that the Appellant did not obtain his passport with difficulty or that he had “paid much more money” for his passport, as he had claimed in his visa application.  Another feature of the first of the letters is the Tribunal’s reference to the Appellant having told the Department, in his visa application, that he had been called to the police station where he had been brainwashed, whereas, he told the Tribunal at the hearing that he had been working at his place of employment, and that the police had come to find him and had taken him away from work.  The Tribunal said of this information that it might lead it to conclude that he was not a witness of truth. 

9. In the letter the Tribunal also recorded that the Appellant had told the Tribunal that the police attacked him with electronic rods and damaged his ears, but that he had not told the Department that he was physically harmed to such a degree by the police that the membranes in his ears had been damaged by the police.  The Tribunal recorded in the letter that this information was relevant, as it might lead the Tribunal to conclude that he was not a witness of truth.  The letter extended an invitation to the Appellant to comment on this information, with a reply by 11 April 2007 being requested and required. 

10. The Appellant did make a response by way of a letter of 11 April 2007 to the Tribunal.  He stated, materially:

    I did bribe officers to put my name on a travelling list for coming to Australia for buying equipment. 

    I told the Department in my PVA that I was called to the police station where I was brainwashed.  That means I was required to go to the police station, it was no contradicted with what I mentioned that police came to find me and they took me away from work. 

    I did not mention about my being attacked by police with electronic rods because I just did not put the details there, that was why I mentioned it at my review application.

11. On 30 April 2007, in its further letter to the Appellant, the Tribunal made reference to the Appellant’s claim to fear persecution by reason of his membership of Falun Gong.

12. The Tribunal then drew attention to inconsistencies which had been noted in its earlier letter and stated that those inconsistencies might lead the Tribunal to conclude that he was not a witness of truth. The Tribunal also made reference to the possibility that if it were concluded that he were not a witness of truth, the Tribunal might conclude that he had engaged in Falun Gong activities in Australia to strengthen his claim to be a refugee. Reference was also made in the letter to the possibility of such conduct being disregarded in accordance with s 91R(3) of the Migration Act.  Reference was further made to the possibility of the Tribunal’s concluding that he did not intend to practise Falun Gong on a return to China and the possibility of a conclusion on the part of the Tribunal that he did not have a well-founded fear of persecution.

13. The Appellant did respond to this further letter and that response took the form of a repetition by way of copying of his earlier letter of 11 April. 

14. As it transpired, the matters which had been foreshadowed in the Tribunal’s letters did form the basis upon which the Tribunal found that it was not satisfied that the appellant was a witness of truth.  The Tribunal recorded that it was satisfied that the Appellant did not flee China fearing persecution.  Instead, the Tribunal was satisfied that the Appellant came to Australia as he had stated to the Tribunal, in order to buy equipment.  It is evident from the Tribunal’s reasons, in the quoting of the contents of the Appellant’s letter of 11 April 2007, that in reaching its conclusions the Tribunal did take into account what the Appellant had said in his letter.

15. The Federal Magistrate found no merit in any of the grounds of review advanced.  I do not consider that the Magistrate was in error in so concluding.  As to the bias ground, there is no evidence of actual bias on the part of the Tribunal.  In respect of apprehended bias, I take the test to be as helpfully summarised by the learned authors of Aronson and others, Judicial Review of Administrative Action, third edition, at page 565 where the following is stated:

    The core of the test for bias for decision-makers exercising public power is whether the relevant circumstances are such as would give rise, in the mind of a fair-minded and informed member of the public, to a reasonable apprehension of a lack of impartiality on the part of a decision-maker.

16. The transcript of the oral hearing before the Tribunal was apparently not in evidence before the Federal Magistrate and neither is it in evidence before me.  The Appellant made reference to his recollection of repetitious questioning on the part of the Tribunal at the oral hearing.  That in itself is not a demonstration of what might ground an apprehended bias claim, even if one assumes that that is a fair summary of the Tribunal’s conduct at the hearing.  The Tribunal is entitled to act in an inquisitorial manner in appropriate circumstances, particularly where there has been some apparent inconsistency as between what is said by a visa applicant at a hearing and what is earlier stated in a visa application. The Tribunal may well, as a matter of fairness, and so as to give an applicant a full opportunity to state his case, engage in some repetition of questioning.  The reasons of the Tribunal do not, on their face, suggest that an apprehended bias claim could be made out, and there is no other evidence which would ground such a claim. 

17. As to the claim that the Tribunal’s conclusions were not based on a rational or logical foundation, it must first be said that there is something of a controversy as to whether this is a ground of jurisdictional error.  In VWST v The Minister for Immigration and Multi-cultural and Indigenous Affairs [2004] FCAFC 286, 10 November 2004, a Full Court of this Court held that the current state of the law is that want of logic in the reasons of the Tribunal is not an available ground of review, see para 18.

18. That Court did so, having considered, materially, a then recently given decision of the High Court, Re: Minister for Immigration and Multi-cultural Affairs, ex parte S20 of 2002 (2003) 77 ALJR 1165. I note that the learned authors of Aronson and others, at page 265 state of this decision of the High Court that it, “approved review for irrationality or illogicality.”  There is, with respect, certainly reason so to regard the High Court’s decision in S20; see para 52 in the joint judgment of McHugh and Gummow JJ, with which, at para 173, Callinan J agreed; see also para 138 in the reasons of judgment of Kirby J.  Even assuming, though, that want of logic or irrationality is a permissible ground of jurisdictional error review, this is not a case, in my opinion, in which such a ground can be made out.

19. There were manifest inconsistencies of the kind highlighted by the Tribunal in its correspondence, and subsequent reasons.  Those reasons, having regard to the inconsistencies highlighted, do provide a logical and rational basis upon which the Tribunal could have concluded, as it did, that it was not satisfied that the claim for a protection visa had been made out. 

20. The final ground of challenge is that the Tribunal did not take into account the information provided in response to the s 424A letters by the appellant. As I have mentioned, though, these letters were expressly quoted in the Tribunal’s reasons, and it is evident that the information was taken into account by the Tribunal in reaching its conclusions.

21. The weight to give to the information in the response made by the Appellant to the s 424A correspondence was a matter for the Tribunal. It was for the Appellant, either before or at the time of making his visa application, or in the hearing before the Tribunal, or in his response to the s 424A correspondence, to bring forward as best he could, information to support his visa application. It is too late to attempt to do that, either in proceedings before the Federal Magistrates Court, or here. It follows from what I have said, that the appeal must fail.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated:        13 May 2008

Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the Respondents:	Australian Government Solicitor

Date of Hearing:	6 May 2008
Date of Judgment:	6 May 2008