SZMHS v Minister for Immigration and Citizenship

[2009] FCA 104

FEDERAL COURT OF AUSTRALIA

SZMHS v Minister for Immigration and Citizenship [2009] FCA 104

Migration Act 1958 (Cth)

SZMHS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1638 of 2008

JACOBSON J
13 FEBRUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1638 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMHS
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JACOBSON J
DATE OF ORDER:	13 FEBRUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1638 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMHS
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JACOBSON J
DATE:	13 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal from orders made by Smith FM on 29 September 2008, dismissing an application for review of a decision of the Refugee Review Tribunal dated 15 April 2008.  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 political grounds.  Her claims are set out in a statutory declaration, the terms of which are set out in the decision of the Tribunal at Appeal Book pages 129 to 131.  Those claims are summarised in the decision of the Federal Magistrate at [2] and [3].

3. In summary, the appellant claimed that she had conducted a small shop in her home town but that she had to close it due to a government project.  She claimed that she and other shopkeepers did not receive compensation, but they were informed that money was available to compensate them.  The appellant said that she was told, however, that corrupt local government officials had taken the money.  She claimed that she and another local shopkeeper organised a protest which was suppressed by the police and that she and other protesters were arrested.  She claimed that she was detained and interrogated and that she was forced to write a confession.

   DECISION OF THE REFUGEE REVIEW TRIBUNAL

4. At the conclusion of the hearing before the Tribunal on 26 February 2008, the Tribunal gave the appellant particulars of information which could be the reason or part of the reason for affirming the decision to refuse the grant of a protection visa.  The particulars of the information are set out on pages 136 to 137 of the Appeal Book. 

5. The particulars of the “information” were that the appellant had made claims during the hearing which had not been included in, or were inconsistent with her written claims in her statutory declaration.  These particulars included that:

   ·she had given inconsistent evidence about the origin of the corruption investigation team;

   ·at the hearing, she claimed that during the protest on 23 July 2007, she had been beaten by police, she lost consciousness and she woke up in gaol;

   ·she had signed a confession following a nasty dog bite;

   ·she had been held in a small cell in solitary confinement on two separate occasions; and

   ·she attended meetings in July 2007 that were not referred to in the statutory declaration.

6. The Tribunal explained that these inconsistencies could lead it to conclude that the appellant was not telling the truth, was not a credible witness and was fabricating her claims to be a refugee.  The Tribunal invited the appellant to comment on or respond to the particulars of the “information.”  It allowed her some time to do so and the appellant responded through her migration agent on 18 March 2008. 

7. The Tribunal found that the appellant’s evidence was inconsistent and unconvincing.  It set out in six bullet points the matters upon which it relied in support of that finding.  These matters included the inconsistencies or embellishments in her claims to which the Tribunal referred in the particulars of information provided at the end of the oral hearing. 

8. The Tribunal said that based on its impression and on its concerns about the appellant’s evidence as a whole, it found the appellant not to be a credible witness, and that she had fabricated her claims.  It did not accept any of her claims, and it was not satisfied that the appellant was a person to whom Australia has protection obligations under the Convention.

   DECISION OF THE FEDERAL MAGISTRATE

9. The appellant relied on three grounds of review before the Federal Magistrate. The first ground of review was that the Tribunal had failed to comply with its obligations under section 424AA of the Migration Act 1958 (Cth) (“the Act”). The appellant said that the Tribunal failed to give clear particulars of the information about the inconsistencies in her evidence. She did not give particulars of the information to which she referred.

10. The Federal Magistrate found no substance in her contentions, and observed that on the Tribunal’s description of the hearing, it had followed precisely the requirements of section 424AA by indicating its concerns to her. The Federal Magistrate also found at [17] of his reasons that the Tribunal plainly gave the appellant a reasonable opportunity to respond.

11. The second ground of review was that the Tribunal failed to comply with its obligations under section 424A(1) of the Act. Again, no particulars were supplied, but his Honour was satisfied at [20] of his reasons that there was no breach of section 424A(1) because the Tribunal followed the procedure referred to in section 424AA so that the provisions of section 424A(2A) were satisfied.

12. The third ground of review was that the Tribunal had not “fairly considered” the application according to law.  The appellant said that the unfairness arose because she had provided documents about her marriage and how she had left China, and that the Tribunal had not addressed those matters.  The substance of the Federal Magistrate’s reasons on this ground are set out at [22]:

    However, this argument is not supported by the evidence which is before me, as to what happened at the hearing. As I have noted this consists of the Tribunal’s description of the hearing. It is clear from that description that the hearing was occupied extensively by the Tribunal investigating the applicant’s claimed history of persecution in China, and by the Tribunal expressly identifying reasons why it might not be found persuasive and credible. It was these issues upon which the Tribunal then decided the matter. I do not accept that anything happened at the hearing, which might have misled the applicant into not being aware of the issues upon which the Tribunal ultimately determined the matter.

    THE APPEAL

13. The appellant filed a notice of appeal which seeks to re-argue the matters upon which she was unsuccessful before the Federal Magistrate.  The appellant appeared before me this morning in person.  She told me from the bar table that the Tribunal believed that her travel companion when she arrived in Australia was her husband, but she said that the companion was not her husband and that she had proved this to the Tribunal.  She also said that she had brought her marriage certificate, her son’s birth certificate, and some photos, but the Tribunal did not believe her.

14. The short answer to the appellant’s oral submissions is that the Tribunal did not make any finding as to who had accompanied her when she arrived in Australia.  The Tribunal listed the six reasons why it considered the appellant’s evidence to be an embellishment of her written claims or to be inconsistent with them.  Those were the reasons why the Tribunal did not believe the appellant.  The authorities clearly establish that the question of the appellant’s credibility was a matter for the Tribunal. 

15. As to the three grounds of appeal set out in the notice of appeal, it is sufficient to say that I can see no error in the reasons given by the Federal Magistrate for dismissing the application for judicial review. 

16. I have taken into account the fact that the appellant is not legally represented but, for the reasons set out above, I have come to the view that the appeal must be dismissed with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:        13 February 2009

The Appellant was self-represented.
Solicitor for the First Respondent:	Australian Government Solicitors

Date of Hearing:	13 February 2009
Date of Judgment:	13 February 2009