SZLGM v Minister for Immigration and Citizenship

[2008] FCA 1202

FEDERAL COURT OF AUSTRALIA

SZLGM v Minister for Immigration and Citizenship [2008] FCA 1202

Migration Act 1958 (Cth) s 424A, s 425

Re Refugee Tribunal Ex Parte H (2001) 75 ALJR 982 cited
SZBEL v Minister for Immigration, Multicultural and Indigenous Affairs (2006) 81 ALJR 515 cited

SZLGM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD694 OF 2008

LOGAN J
5 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD694 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLGM
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	5 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 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	NSD694 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLGM
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE:	5 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The Appellant is a citizen of the People’s Republic of China.  He travelled to Australia on a passport issued by the government of that country.  He entered Australia pursuant to a temporary business visa which he had obtained on 2 February 2007.  Shortly after arriving here he applied, on 12 March 2007, for what is known as a Protection (Class XA) visa under the Migration Act 1958 (Cth) (“Migration Act”). That application was considered by a delegate of the Minister for Immigration and Citizenship who is the First Respondent in this appeal. The delegate refused the application. As was his right, under the Migration Act, the Appellant sought the review of that decision by the Refugee Review Tribunal (“Tribunal”).

2. On 30 July 2007, for reasons which were then published, the Tribunal decided to affirm the decision of the Minister’s delegate not to grant the Appellant a protection visa.  The Appellant then sought to challenge the Tribunal’s decision by way of judicial review proceedings in the Federal Magistrates Court.  On 24 April 2008, for reasons which were then published, that Court decided to dismiss the judicial review application, with costs, which were fixed in the amount of $5000.  It is from that decision that the Appellant appeals to this Court.  The grounds of appeal are set out in the notice of appeal filed on 13 May 2008.  Those grounds are as follows:

   1.The Learned Federal Magistrates erred in finding (at [16] of his Honour’s reasons for judgment) that the Refugee Review Tribunal (“the Tribunal”) was not obligated to provide me with a copy of the sound recording or a transcript of the interview at the Department of Immigration and Citizenship (“the Department”).

   The Tribunal has considered the information obtained according to the Department’s record from its interview with me in relation to my protection application.  Although the Tribunal might give me particulars of that information the issues hereby are:

   ·First, the sound records or a transcript of the interview at the Department, from which the Tribunal has obtained particulars of that information, has not been verified or confirmed by me. I, therefore, have to question the accuracy and correctness of the sound records or the transcript of the interview. In other words, if the sound records or the transcript did have significant mistakes which have incorrectly recorded by evidences given at the Departmental interview; then particulars of the information given by the Tribunal for the purpose of s 424A(1) of the Act must be significantly incorrectly.

   ·Secondly, the Tribunal is obligated to stand in the middle between the Department and me.  It is definitely unfair that the Tribunal considered the Department’s record as correct information without my verification or without my examination.

   2.The Learned Federal Magistrate erred in finding (at [17] of his Honour’s reasons for judgment) that the interpreter services at the departmental interview were inadequate “… does not amount to a basis upon which the Tribunal’s decision mist be set aside …”

   The issue is whether or not the Tribunal has provided or created a fair chance for me while my review application was decided.  The Tribunal should at least give me a fair chance to let me verify or examine accuracy or inadequacy of the interpreter services at the department interview, especially while the Tribunal has considered my evidences at the department interview as a reason or part of reason.

   3.The learned Federal Magistrates erred in finding (at [22] of his Honour’s reasons for judgment) that “… it was open to the Tribunal, on a logical basis, to reject those allegations as being untrue.  In doing so, the Tribunal did not evidence bias of either variety.”

   However, it is clear that the Tribunal made its finding greatly based on its assumption, which can be evidenced even according to summary for the Tribunal’s decision made by his Honour (at [11] of his Honour’s reasons for judgment).  The Tribunal simply rejected my application with the words such as “the applicant gave hesitant evidences” or “the applicant’s account of his alleged detention somewhat rehearsed”.

   4.The Learned Federal Magistrates erred in not finding (at [24] of his Honour’s reasons for judgment) that I am currently in extremely difficult situation and that I do not have any income and that I do not have any jobs owing to my particular immigration status.  In such a situation, how am I able to afford expensive legal fee for obtaining a transcript of the Tribunal’s hearing?  I do not know why his Honour could not listen to the recording tapes of the Tribunal’s hearing?

   5.In summary, I have never believed that review application has been fairly and carefully assessed by the Tribunal. [sic]

3. Grounds 1 and 2, in the notice, are premised upon an alleged reliance by the Tribunal upon the interpreted text of a departmental interview, upon an asserted inaccuracy in that translation and upon an asserted obligation on the part of the Tribunal to provide the appellant with a recording of that interview. Upon these premises, it is alleged that the Federal Magistrate erred in not concluding that the Tribunal had breached s 424A of the Migration Act. 

4. On 11 July 2007 in accordance with what it apprehended to be the obligation which it had under s 424A of the Migration Act, the Tribunal sent to the Appellant, via his appointed recipient, in respect of the review application, a letter in which it provided particulars of information discussed with him at the oral hearing which the Tribunal had afforded the Appellant that day.  The particulars provided by the Tribunal are as follows:

   ·You wrote in your protection visa application that you had one residential address from March 1997 until November 2006.  (You confirm this at hearing, but said that you moved there in 1998)  At today’s hearing, you added that your wife and children continue to live there.  You also claimed to have been detained for 52 days from June/July 2006, and to have been monitored and questioned by the policy during this period.  This information is relevant because your stable residence suggests that the authorities could easily have searched your premises had they suspected you of being a political agitator, and that they could have found your passport if they had done so.  The absence of such action (together with your evidence that you were able to work as a courier, that you were threatened once only, in August 2006; and that your wife was questioned but not otherwise harmed) may cast doubt on whether you were detained and whether the authorities regard you as a political agitator.

   ·You wrote in your protection visa application that on 20 November 2006 you arrived later to your appointment with Ms Wang because you had a ‘temporary job to transport some goods by chance’.  At interview with the Department delegate and at today’s hearing you advised that you had casual employment as a courier (or delivery person) from about 3 days after your release from detention. You confirmed today that you work on 20 November 2006 was the same type of work that you started in August 2006.  This information is relevant because this kind of work involves travel and contact with various people.  It appears odd that the authorities would permit a person regarded as anti-government, who has been detained and who is subject to ongoing pressure (as you claim) to do this, as it would make it difficult to monitor them and it would prove ample opportunity for dissident activity.

   ·You told the Department officer that it was on 20 November 2006, in the evening, that you travelled to Zhejiang province.  However, you told the Tribunal that you overnighted in Longtian, and went to Zhejiang province the following morning.  This information is relevant because the apparent inconsistency may cast doubt on veracity of the claimed incident and your response.

   ·You wrote in your protection visa application (and confirmed at hearing that you went into hiding for 3 months in China, from November 2006 until your departure for Australia in February 2007.  This information is relevant because the significant delay between your departure from Fuqing City (November 2006) and your departure from China may indicate that you did not flee persecution.  It is also relevant because your ability to sustain yourself for 3 months in China (such as accessing your bank accounts or having your wife do so on your behalf) and obtain documents and other necessities from your wife may led the Tribunal to infer that you did not flee persecution in China.

   The above information is also relevant to the review because it may cast doubt on your credibility as a witness, and lead the Tribunal to not accept your refugee claims.

5. The Appellant did respond to the invitation extended to him.  That response took the form of a statutory declaration which he made on 25 July 2007 and sent to the Tribunal via his migration agent.  In that Statutory Declaration the Appellant made the following comments:

   Regarding to the issues arising form the fax recently received from the Refugee Review Tribunal (“the Tribunal”), I would like to make my comments as follows:

   ·As a matter of fact, the police did not provide or have nay evidences showing that I had been involved in any “anti-government” activities before or during my being detained for 523 days by the Public Security Bureau (“PSB”) from 9 June 2006 to 31 July 2006.  I was in fact forced to make confession of so-called “anti-government” activities under inhuman torture.  The reason caused my suffering at that time was very simple – I have provoked a relative of Chuan Li who is the Vice-President of Fujian People’s Government.  Obviously being detained for 52 days is significant evidence that Chuan Li and those police have abused their authorities to persecute or punish innocent people like me who dared to openly protest against them.  Also, what Chuan Li and those police wanted at that time was to use me as an example to give a serious warning to other who dared to protest against them in the future.  But, in fact, before November 2006, even the police themselves did not think that I had really been involved in anti-government movement.  In other words, I was actually framed by Chuan Li and those police.  Therefore, I was able to live at the same address before November 2006.

   However, the situation has completely changed since I met AZW, who was a secret member of China Democracy Party and who was a post-graduate of Graduate School of Chinese Academy of Social Sciences, in November 2006.  China Democracy Party is a well known underground political party in China, and its activities have strictly been banned by the Communist dictatorship.  So Ms Wang’s particular relationship with China Democracy Party and her particular meetings with me have made me come to particular attention of the PRC authorities.  Therefore, since then, the police have definitely believed that I have been involved in anti-government movement.  As a result, I have been regarded as an activist of “anti-government” activity; and particularly, I have been denounced to provide “anti-government” materials in order to assist AZW to organise “anti-government” movement.  That was why I had to go for hiding from November 2006.

   In order to assist me to escape from China, my families and friends have tried their best to find various kind guanxi (“contacts”) and spend a lot of money including bribing those corrupt officials and police.  That was why I was able to leave the country on my own passport eventually.

   ·As I have mentioned above, before November 2006, even the police themselves did not think that I had really been involved in anti-government movement; and I was in fact forced to make confession of so-called “anti-government” activities under inhuman torture; and I was actually framed by Chuan Li an d those police.  So, I was able to do that kind of work involved travel and contact with various people.  But, in my situation has completely changed since I met AZW in November 2006.  Since then, the policy have definitely believed that I have been involved anti-government movement.  As a result, I have been regarded as an activist of “anti-government” activity; and particularly, I have been denounced to provide “anti-government” materials in order to assist AZW to organise “anti-government” movement.

   ·On 20 November 2006, I indeed witnessed AZW had been put into one of the police cars.  However, being taken away by the police might not mean that the person was arrested.  He or she might be taken away for interrogation or detention. In China, the policy normally interrogate or detain the suspect first; and then arrest the suspect if necessary.  The arrest must be approved by the procurators and it is normally at the detention centre.  So, it would almost be impossible for me to witness that AZW had been arrested.

   ·I have not been provided a copy of record tape or transcript in relation to my interview with the Department.  So, I m unable to figure out what has happened at the Departmental interview.  I think that I might not clearly explain how I had travelled to Zhejiang Province or the interpreter might not properly interpret the Department Officer’s question at the Departmental interview.  As a matter of fact, it was impossible for me to directly go to Zhejiang Province in the evening of 20 November 2006 from my hometown; and I had to spend one night in Longtian and travelled to Zhejiang in the following morning.

   ·It was very much difficult for me to get a chance to leave China.  As I have mentioned above, my situation has completely been changed since November 2006.  I really wanted to leave the country immediately, but I was really unable to decide it by myself.  I was in hiding on one hand; and on the other hand, the police was looking for me.  My families and I, including those friends who had helped me, had to take time to guarantee my smooth leaving from China.  Therefore, I was unable to leave China until February 2007. [sic]

6. As it happens, in the Tribunal’s reasons, the Tribunal came to deal with the material that had been the subject of recording in the note of interview with the departmental delegate in a very particular way.  The Tribunal’s reasons record as follows:

   Third, the Tribunal wrote to the Applicant about 2 apparent discrepancies in his evidence concerning (a) what he saw happen to AZW, and (b) his immediate reaction on learning that the police were after him.  The Tribunal has considered the applicant’s responses to both of these issues.  Although it retains some disquiet about the explanations he offered – for instance, whether he turned away from the hotel on seeing the police car only, or whether he did in fact see AZW (whether she was being put into the car, or ‘arrested’ – the Tribunal considers that it would be unsafe to rely on these particular points to draw adverse inferences.  However, this does not diminish the Tribunal’s overall concerns about the credibility of the applicant’s claims. [emphasis added]

7. In the Federal Magistrates Court the learned Magistrate observed in his reasons for judgment, at para 15:

   It is apparent that the information which the tribunal relied upon, to reach its decision, was the information which the Applicant gave the tribunal during the course of its hearing on the facts.  This element of this asserted ground of review is not made out.

8. His Honour was referring to an element of challenge made before him in respect of an alleged breach of a 424A, namely, a reliance, so it was alleged, upon information given during the Appellant’s interview with an officer of the Minister’s department. 

9. The short point is that whatever else might be the merits in a particular case of the argument sought to be advanced by the Appellant, it fails in this case because the premise upon which it is founded just does not exist. There is no reason at all not to take the Tribunal at its word in the passage that I have italicised in the quote from the Tribunal’s reasons. This is what the Federal Magistrate apprehended in dismissing the ground of challenge under s 424A.

10. I share the Federal Magistrate’s view that there is an absence of a factual basis for the ground of challenge under s 424A. The reasons of the Tribunal make it plain that the Tribunal was not relying, deliberately, on any adverse inference at all which might be drawn in respect of any comparison with the statements made by the Appellant at the interview with the departmental officer. Thus, whatever concerns the Appellant may have with the quality of that translation did not in the end come to count against him because the Tribunal deliberately put that aspect of his case out of consideration when assessing whether or not to believe the claim advanced for a protection visa.

11. Put another way, the Appellant’s claim for a protection visa in the eyes of the Tribunal and insofar as it relied upon the Tribunal’s accepting the Appellant’s evidence did not fail by virtue of comparison with the translation of the interview with the departmental officer.  Lest there be any doubt, I should also record that the Tribunal is not obliged in each and every case to furnish an applicant for review with a sound recording of an interview conducted between that Applicant and a departmental officer. There may be occasions when that is necessary, but this is not one of those cases.  That, it seems to me, disposes of grounds 1 and 2 in the notice of appeal. 

12. Ground 3 seeks to challenge the way in which the Tribunal went about making its findings of fact based upon its assessment of the Appellant’s credibility, and in turn alleges error on the part of the learned Magistrate in not finding, in effect, jurisdictional error in the Tribunal’s fact finding process.  The difficulty with this ground is that for reasons which are extensively detailed in the Tribunal’s reasons, the Tribunal had come to make findings as to whether it believed the Appellant’s account which were reasonably open for the Tribunal to make.  It is nothing to the point that either the Federal Magistrate or, even more so, I, were either of us constituting the Tribunal, that we would have been disposed perhaps to have accepted the Appellant’s claim.

13. There is a necessary discipline and restraint to be exercised by those who exercise judicial power on a judicial review application in respect of findings of fact made by an administrator or an administrative tribunal.  A judicial review application and an appeal are not licenses to embark upon a review on the merits of findings of fact.  As has been said, a finding as to credibility is a finding of fact par excellence.  This restraint on the part of those undertaking judicial review applications is rightly evident in the reasons of the Magistrate.  There it seems that the alleged unfairness of the Tribunal proceeding was challenged on the basis of an allegation of bias on the part of the Tribunal.  That allegation was not in terms repeated in the notice of appeal, although there was a flavour of that in the submissions which came to be made by the Appellant. 

1. Even assuming that that is the basis of challenge it faces the difficulty that there is not a scintilla of evidence of actual bias on the part of the Tribunal and neither is there to be found in the Tribunal’s reasons anything which would give rise to the objective possibility of bias, having regard to what was said by the High Court in respect of such a challenge in Re Refugee Tribunal Ex Parte H (2001) 75 ALJR 982 at 983, para 5. Thus, however one approaches ground 3, whether from a perspective of a challenge to credibility findings or from the perspective of a repetition of a bias challenge, there is no merit in that ground.

2. Ground 4 is not, in terms a ground of jurisdictional error, although in fairness and having regard to the reference in the ground to the Magistrate’s conclusion at para 24 of this reasons for judgment, I take that ground to be a repetition of the allegation that the Tribunal breached s 425 of the Migration Act and that the learned Magistrate erred in not so finding. There was certainly a development of argument in the Appellant’s oral submissions that there had been a breach of s 425, although as was, with respect, correctly submitted on behalf of the Minister, there was an absence of particularity in the basis of challenge as developed in those oral submissions.

3. In the notice of appeal, para 4, the Appellant alleges, or at least states, that he does not know why the Magistrate (I infer) could not listen to the recording tapes of the Tribunal’s hearing.  He makes reference to his absence of financial resources and consequent inability to afford the fee in respect of obtaining the transcript of the Tribunal’s hearing.  It was not, though, for the Magistrate of his own motion to obtain such a transcript. 

4. Further, insofar as the Tribunal’s reasons record, in quite some detail, albeit in a summary way, the course followed by the Tribunal at the oral hearing, it seems to me that the Tribunal has invited the Applicant to appear before it and has also, in so doing, allowed him to present arguments relating to issues which arose in the decision that it was reviewing.  There seems to have been an opportunity extended in the course of the hearing for the Appellant to comment upon issues which were potentially adverse.  Further, and this is also significant, there is no suggestion that the translation of the Appellant’s evidence and submissions to the Tribunal was anything other than a faithful translation. 

5. It is worth repeating, lest the Appellant think that I differ from the Federal Magistrate in this regard, that the Tribunal was not obliged to disclose to him under s 425 its mental processes or to give a running commentary on what it thought about the evidence that he was giving. The authority to which the Federal Magistrate makes reference, SZBEL v Minister for Immigration, Multicultural and Indigenous Affairs (2006) 81 ALJR 515 at 523, para 48, binds me as much as it did the Federal Magistrate in this regard.

6. Overall there is undoubtedly a feeling of disappointment on the part of the Appellant that his claimed basis for his protection visa was not upheld.  However, and it is a significant “however,” as I have already stated it is not the role of a court on a judicial review proceeding to revisit merits and much less is it the role of this Court.  The bases of challenge which are set out in the notice of appeal are not, in my opinion, made out.  That is so whether one regards the challenge made in ground 3 as a challenge to credibility findings on the basis of illogicality or irrationality or whether one regards that ground as a repetition of the bias ground that was advanced before the Federal Magistrate. 

7. For these reasons, then, the appeal in my opinion must be dismissed.

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

Associate:

Dated:        12 August 2008

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

Date of Hearing:	5 August 2008
Date of Judgment:	5 August 2008