SZMCG v Minister for Immigration and Citizenship

[2008] FCA 1411

FEDERAL COURT OF AUSTRALIA

SZMCG v Minister for Immigration & Citizenship [2008] FCA 1411

SZMCG v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1016 OF 2008

JACOBSON J
5 SEPTEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1016 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMCG
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JACOBSON J
DATE OF ORDER:	5 SEPTEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs 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	NSD 1016 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMCG
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JACOBSON J
DATE:	5 SEPTEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders made by Driver FM summarily dismissing an application for judicial review of a decision of the Refugee Review Tribunal.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa.

2. The appellant is a citizen of the People’s Republic of China.  She claimed to have a well-founded fear of persecution on religious or political grounds.  The substance of her claim was that she was involved in an underground religious organisation and that she was associated with others who were involved with that religious group.  She claimed to have contributed RMB100,000 to a member of the organisation to set up a business and to have engaged in various underground activities with that person. 

3. The Tribunal rejected the appellant as a person “who completely lacked credibility.”  It found that she had memorised her statement and was unresponsive to the Tribunal’s questions at the hearing.  The Tribunal said that her oral evidence was often inconsistent and was also inconsistent with her written claims. 

4. The Tribunal raised its concerns with the appellant in a letter which was sent to her pursuant to s 424A of the Migration Act1958 (Cth). The letter was dated 4 February 2008 and the appellant responded to the letter on 18 February 2008. The Tribunal listed its concerns in 11 bullet point paragraphs set out in its reasons for decision. Some of the paragraphs contain a number of subparagraphs. The bullet points listed in the reasons are generally in accordance with the terms of the s 424A letter but they are amplified in the reasons for decision to record the Tribunal’s findings.

5. The effect of what the Tribunal said in its reasons was that it considered the appellant’s evidence to be implausible.  In particular the Tribunal found it to be implausible that the appellant would have contributed RMB100,000 to the named person to set up the business in light of the appellant’s own financial circumstances.  The Tribunal also considered it to be unlikely that the appellant’s friends would have contributed the money since they did not know the person to whom the money was said to have been lent. 

6. The Tribunal also said that the appellant was unable to satisfactorily explain the details of her involvement in the various activities to which she referred.  Those activities included the printing and transportation of a large number of bibles. 

7. The Tribunal did not accept that the inconsistencies in the appellant’s evidence were caused by any confusion or pressure.  The Tribunal acknowledged the appellant’s claims that she had little education, that she was under pressure at the hearing and that she had difficulty understanding the Tribunal’s questions, but the Tribunal was not satisfied that the inconsistencies to which it referred arose as a result of those difficulties.  The Tribunal considered that the appellant’s understanding of the questions and her ability to give evidence appeared to be “selective.”

8. The learned Federal Magistrate also observed that the appellant had difficulties in dealing with the matter in the Federal Magistrates Court.  He said at [6] of his reasons that he had difficulties eliciting responses from her but he was satisfied that the level of assistance provided by the Mandarin interpreter was adequate for the purposes of the hearing. 

9. The application in the Federal Magistrates Court was dealt with under r 44.12 of the Rules of that Court.  That rule is usually described as a “show cause” rule which provides for summary dismissal. 

10. The rule specifically states that a dismissal under r 44.12 is interlocutory.  Notwithstanding this I granted leave to appeal because there may be some doubt as to whether it is open to the Federal Magistrates Court to stipulate under the rule-making power that the dismissal of a proceeding is in fact interlocutory.  I thought that leave ought to be granted having regard to the effect on the appellant of the dismissal of her application for review. 

11. The applicant raised three grounds on the show cause application.  The first ground was that there was a breach of s 420(2)(b) of the Act.  However, the learned Federal Magistrate considered there was no substance in this ground and he referred to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [77]. That decision is authority for the proposition that even if there were a breach of the section, it would not constitute jurisdictional error.

12. The second ground of review was that there was a breach of s 424A of the Act. The Federal Magistrate observed at [11] that the Tribunal was not bound to send a letter under that section but that the course which had been adopted was a prudent one for the Tribunal, having regard to the difficulties which the Tribunal had in dealing with the appellant at the oral hearing. The learned Federal Magistrate observed at [12] that the Tribunal’s decision shows that it considered the appellant’s response to the s 424A letter. His Honour therefore rejected the contention that the Tribunal failed to deal with the appellant’s response to the s 424A invitation.

13. The third ground of review raised before the Federal Magistrate was pre-judgment or bias.  The Federal Magistrate rejected this ground. 

14. His Honour also went on at [15] to say that he had considered whether there might be some other arguable ground of jurisdictional error. He was satisfied on his consideration of the material that there was no such error. He therefore dismissed the application for review pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules.

15. The appellant appeared in person today.  She had the assistance of a Mandarin interpreter.  She did not say anything in support of the appeal but I have considered the matter closely. 

16. The Notice of Appeal essentially contends that the Federal Magistrate was in error in his finding on each of the grounds referred to in his reasons for judgment.  I am satisfied that there is no error on each of those questions. 

17. The Notice of Appeal also contends that the Federal Magistrate failed to consider her application “properly and fairly.”  This is not borne out by a consideration of the Federal Magistrate’s reasons.  In particular, as I have said, he considered for himself at [15] whether there was any other arguable ground of jurisdictional error and he came to the view that there was none. 

18. I raised with Ms McDonald, who appeared this morning for the Minister, two other possible grounds of review.  The first was the ground referred to by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. However, it is plain that the delegate rejected the appellant’s application for a visa upon the basis that she had made a series of unsubstantiated claims and claims that lacked credibility or details. It follows therefore that the Tribunal complied with its obligations under s 425 of the Act to invite the appellant to give evidence and present arguments relating to the same issue as the delegate considered to be dispositive of the application.

19. I also raised with Ms McDonald the question of whether there was a breach of s 91R(3) of the Act.  However, I can see no possible breach of that subsection because the concluding paragraph of the Tribunal’s reasons contains an express finding that the applicant had not attended a church in Lidcombe as she had claimed in her evidence. 

20. It follows therefore that the appeal must be dismissed.  I will order the appellant to pay the costs of the first respondent on 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:        16 September 2008

The Appellant was self-represented.
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	5 September 2008
Date of Judgment:	5 September 2008