SZLHO v Minister for Immigration and Citizenship

[2008] FCA 1178

FEDERAL COURT OF AUSTRALIA

SZLHO v Minister for Immigration and Citizenship [2008] FCA 1178

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

Re Refugee Tribunal; Ex Parte H (2001) 75 ALJR 982 cited
Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited

SZLHO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD688 OF 2008

LOGAN J
5 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD688 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLHO
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 which are fixed in the amount of $2700.

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	NSD688 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLHO
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 came to Australia on 13 February 2007.  One month later, on 13 March 2007, he applied for a type of visa under the Migration Act 1958 (Cth) which is known as a protection visa. On 2 April 2007, a delegate of the Minister for Immigration and Citizenship, who is the first respondent in this appeal, decided to refuse that visa application. In turn, and as was his right under the Migration Act 1958, the Applicant sought the review of that refusal decision on the merits by the Refugee Review Tribunal (“Tribunal”).  He did that by an application made on 4 May 2007.  On 6 August 2007, for reasons which it then published, the Tribunal decided to affirm the decision of the Minister’s delegate not to grant to the Appellant a protection visa.

2. Thereafter, the Appellant sought the judicial review of the Tribunal’s decision by the Federal Magistrates Court.  On 24 April 2008, for reasons which were then published, the Federal Magistrates Court dismissed the judicial review application.  From that decision, the Appellant appeals to this Court on three grounds.  The grounds, as set out in notice of appeal and as particularised, are as follows:

   1.The learned Federal Magistrates erred in finding that the Refugee Review Tribunal (“the Tribunal”) assessed my review application properly.

   Particulars

   The Tribunal was not The Tribunal’s decision was based on reasoning that was irrational and illogical or based on unwarranted assumptions or that the Tribunal failed to give consideration to relevant and significant evidence supporting the applicant’s claim; and the Tribunal failed to assess evidence favouring the applicant or the Tribunal made its decision recklessly or the Tribunal failed to have genuine attempt to exercise jurisdiction.

   2.The learned Federal Magistrates erred in finding that the Tribunal complied its obligations under s 424A(1) of the Act.

   Particulars

   In the Tribunal’s s 424 letter, the Tribunal failed to disclose most of information that the Tribunal has considered as the reason or part of reason in making its final decision.  The Tribunal has particularly failed to ensure me to understand the information that it has relied on directly in relation to my review application; and The Tribunal failed to give me a genuine opportunity to comment on the information that it has used as the reason or part of the reason in its final decision.

   3.The learned Federal Magistrates erred in finding that the Tribunal complied with its obligations under s 425 of the Act.

   Particulars

   The Tribunal failed to clearly make me to understand the issues raised in the review application, such as the issues in relation to my protests and my detention, so that I could not make any comment or present my arguments against the issues.
   [sic]

3. In the course of his oral submissions, the Appellant also made reference to what he asserted to be bias on the part of the Tribunal member.

4. That was not a ground of challenge advanced before the learned Federal Magistrate.  That in itself would not prevent a grant of leave to amend a notice of appeal in an appropriate case.  In this instance, there is no evidence which would ground a claim either for actual or apprehended bias on the part of the member constituting the Tribunal in the material which comprised the record before the Federal Magistrates Court.  There was no attempt to adduce further evidence, and thus no need to consider whether that exceptional course ought to be permitted.  It suffices to note that the mere fact that a Tribunal chooses not to accept the claims made either in writing or orally for a protection visa does not in itself give rise to any basis for the setting aside of a Tribunal’s decision on the basis of apprehended bias.  More particularly, such a finding does not give rise to an objective possibility of bias, as that concept is described by the Full Court of the High Court in Re Refugee Tribunal; Ex Parte H (2001) 75 ALJR 982 at 983, para 5.

5. As a general comment, there is much force in the principal submission made on behalf of the Minister, which is that, as developed in oral argument, and as articulated in the notice of appeal, the Appellant has not engaged with the reasons for judgment of the Federal Magistrate so as to highlight where there is error in the reasoning of that Court.  It is to be remembered that the function discharged by this Court is not that of the judicial review of a decision of the Tribunal, but rather the entertaining of an appeal on articulated grounds from the Federal Magistrates Court. 

6. For all that, the Minister, by his counsel, very properly undertook the exercise of detailing, having regard to the notice of appeal, why it was that there was no error in the reasoning of the learned Federal Magistrate.  In so doing, the assumption was made that the Appellant’s case was that the learned Magistrate had erred in not accepting that the Tribunal’s decision was flawed on one or more of the bases set out in the notice of appeal.  That seems to me to be a fair way to approach the disposal of this appeal.  What I therefore propose to do is, in short form, to deal with each of the bases of challenge set out in the notice of appeal.

   Ground 1 – alleged error in reasoning (irrationality and illogicality)

7. The Appellant’s claim for a visa centred upon his evidence that in December 2006, in response to an invitation of a former naval colleague, he attended a gathering of demobilised servicemen.  The occasion for that gathering, so he related, was a concern in respect of the taking of land for the expansion of a naval base without the provision of compensation.  This course of action, so the Appellant claimed, was regarded by him as inconsistent with the ethos of the Chinese military.  On his account, he proposed the sending of a letter to the authorities at the naval base demanding compensation be paid to local farmers, and that the military authorities respect basic human rights in the future.

8. According to his account, in January 2007 officers of the local public security bureau (hereafter PSB), visited him and accused him of anti-government activity.  On the Appellant’s account, he was taken to an office of the PSB where he was interrogated until midnight.  Others who had attended the gathering, including the person who had informed him that land had been taken for naval base expansion without compensation, were detained.  The Appellant’s account was that upon his release he had sought, with some 20 others, to go to the PSB office where his informant had been detained, in order to demand that person’s release.

9. In turn, his account was that he and others had been arrested for being supporters of this informant, with the result that he had been interrogated and maltreated both physically and mentally.  His account was that he had been forced to write letters of confession, fined, and warned that there would be further investigations.  Notwithstanding this, his account was that he continued to agitate in respect of the treatment of those who had taken part in the demonstration and in respect of the compensation issue.  His account was that someone whose information he regarded as reliable had told him that he was suspected of inciting anti-government activities, that he had immediately gone to Shanghai to escape persecution, and that after he had departed China, police officers had gone to his house to arrest him.

10. The Appellant gave oral evidence at the hearing to which he was invited by the Tribunal.  There is no evidence in the appeal record in the form of a transcript of the hearing which the Tribunal conducted.  The Tribunal’s reasons, though, contain what appears to be a very full summary of the exchange between the Tribunal and Appellant and the Appellant’s evidence.  In dealing with this ground, the learned Federal Magistrate adopted the following passage from the written outline of submissions which had been provided on behalf of the Minister:

    Far from rejecting the Applicant’s claims in relation to his involvement in protest activities, his detention by the PSB, his further political activities and his arrangements to leave Australia on the basis of ‘unwarranted assumptions’, the Tribunal rejected the applicant’s claims on the basis of its assessment of his evidence, including the further response provided by the applicant in response to the section 424A letter sent by the Tribunal. Ultimately, it rejected the Applicant’s claims because of its conclusions that he was not a credible witness. It was open to the Tribunal to take this approach. While the applicant may disagree with the Tribunal’s findings, he cannot reagitate his claims, and the evidence he gave in support of those claims in this Court. Nor can the Applicant rely on the unfavourable result he obtained in the Tribunal for an inference that it did not make a genuine attempt to consider his claims.

11. Having studied the Tribunal’s reasons, the adoption of that particular passage by the learned Federal Magistrate seems to me, with respect, to be both appropriate and indeed unremarkable.  In this Court, attention was rightly drawn on behalf of the Minister to an observation made by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at para 67. His Honour there observed that conclusions that an Applicant was not credible and that his claims were fabricated were findings of fact “par excellence”.

12. It bears repeating that it is no part of the function of the Federal Magistrates Court on a judicial review application, much less that of this Court when entertaining an appeal from that Court, to review on the merits the Tribunal’s decision.  See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. There is no merit in ground 1.

    Ground 2 – alleged non-compliance with s 424A

13. Section 424A of the Migration Act 1958 makes provision for the highlighting to an Applicant of potentially adverse “information” and for the extension of an invitation to reply in respect of that information to the Applicant.  The Tribunal sought to comply with that obligation as it apprehended it in a letter dated 16 July 2007, directed to the Appellant via his authorised recipient of information for the purposes of his review application.  In that letter, the Tribunal provided the following particulars of information:

    ·The Tribunal has before it your business visa application of 22 January 2007 and accompanying documents, submitted in Shanghai.  The documents include an approval letter from a named company dated 18 January 2007 listing you as a finance director of that company, and a flight booking for you for 5 February 2007.

    ·You stated on your protection visa application that as soon as you learned, in early February 2007, that you were again wanted, you went to Shanghai.  Your protection visa application (and your passport) show that you obtained an Australian business visa in Shanghai on 2 February 2007, and that you departed China on 12 February 2007.

    ·You indicated, on your protection visa application that you had difficulties leaving China.  The only detail you gave was that “a friend” helped your travel arrangements.  You left China on a passport in your own name.

14. The Tribunal continued, in its letter of 16 July 2007:

    This information is relevant because it suggests you left China in an orderly fashion, and not to flee persecution.  It suggests that during January 2007 you were not organising protests in a named city, but rather making arrangements for your travel to Australia.  It casts doubt on your claim that you travelled to Shanghai as you got news from a ‘reliable source’ that you were again wanted.  Instead, you appear to have lodged your business visa application in Shanghai because the opportunity arose for you to present yourself as the finance director of a company in a named place, and because you had to travel to Shanghai to collect your Australian visa once it was ready on 2 February 2007.  The above information suggests that, even after your visa was ready, you did not leave China for a further 10 days” [sic].

15. The Tribunal further remarked, in respect of other information, that the Appellant’s ability to leave China on a passport in his own name suggested that he was not of adverse interest to authorities in China.  The Tribunal also drew attention, in its letter of 16 July 2007, to a statement made by the Appellant in his visa application, in which he had stated that he was arrested on 3 January 2007, and that at that time he had been asked to cooperate with police and provide evidence in respect of the informant’s anti-government activities.  The Tribunal recorded that at the hearing it had asked the Appellant to explain how he was expected to both keep away from this informant and also to inform on him, as this appeared contradictory.

16. The Tribunal remarked in its letter that the information was relevant because the claims in the Appellant’s visa application that it both had to stay away from the informant as well as inform on him did not appear to make sense.  The Tribunal recorded in its letter that at the hearing the Appellant had appeared to change his evidence.  The Tribunal continued that all of the above information in the letter was relevant, because it might lead the Tribunal to infer that the claimed arrest had not occurred, and therefore might cast doubt upon the Appellant’s credibility.

17. It is no part of the obligation which falls on the Tribunal under s 424A to reveal, under the guise of “information”, its own internal thought processes. In a sense, the Tribunal in its letter of 16 July 2007 may have gone further than what s 424A strictly required of it, but that is certainly no basis for criticising the Tribunal, much less finding jurisdictional error. The learned Federal Magistrate, in dealing with the ground of challenge under s 424A, observed at paras 17 and 18 as follows:

    The Tribunal’s decision was based principally upon the evidence which the applicant gave to the Tribunal at its hearing. To a lesser extent, the Tribunal referred to independent country information. However, only a small part of the Tribunal’s decision was based on other information and, to the extent that it was, it related to the applicant’s travel arrangements which were specifically raised in the s.424A(1) notice.

    The Tribunal’s obligation to notify the applicant of adverse information is limited to the obligations found in s.424A. This results from s.422B’s codification of the natural justice hearing rule in those provisions found in div.4 of pt.7 of the Act. Section 424A is one of those provisions and no other one of them requires the Tribunal to notify an applicant of adverse information.

18. These observations are, with respect, correct. In my opinion, the learned Federal Magistrate’s conclusion that the Tribunal had met its obligations under s 424A was correct. The Tribunal did, in the letter of 16 July 2007, draw to the Appellant’s attention and invite comment on all that could be regarded as “information’ for the purposes of that section.

    Ground 3 – Section 425

19. In respect of this ground, the Federal Magistrate observed, at para 22 of the reasons for judgment:

    In SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 81 ALJR 515 the High Court noted that a Tribunal might indicate to an applicant that everything he or she says in support of his or her application is in issue. That is the case here. The Tribunal indicated to the applicant that everything he said was in issue with the result that it met its s.425 obligation to alert him to those issues which might be determinative of the review application.

20. This particular statement is, in my respectful opinion, exactly apposite in the circumstances of this case.  There is no merit for the reason given by the learned Federal Magistrate in ground 3. 

21. It follows from the above that each of the grounds advanced in the notice of appeal is without merit in my opinion, and that the appeal must therefore be dismissed.

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:        7 August 2008

Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the Respondents:	Sparke Helmore

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