SZMIA v Minister for Immigration and Citizenship

[2010] FCA 815

FEDERAL COURT OF AUSTRALIA

SZMIA v Minister for Immigration and Citizenship [2010] FCA 815

Citation:		SZMIA v Minister for Immigration and Citizenship [2010] FCA 815
Appeal from:		SZMIA v Minister for Immigration & Citizenship & Anor [2010] FMCA 316
Parties:		SZMIA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 555 of 2010
Judge:		TRACEY J
Date of judgment:		3 August 2010
Legislation:		Migration Act 1958 (Cth), ss 424A & 425
Cases cited:		SZMIA v Minister for Immigration & Citizenship & Anor [2010] FMCA 316 Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367
Date of hearing:	3 August 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	24
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondents:	Mr J Shariff
Solicitor for the Respondents:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 555 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMIA
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	3 AUGUST 2010
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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 555 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMIA
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE:	3 AUGUST 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate delivered on 10 May 2010 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 1 July 2009:  SZMIA v Minister for Immigration & Citizenship & Anor [2010] FMCA 316. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship not to grant a protection visa to the Appellant.

   BACKGROUND

2. The Appellant is a citizen of China who arrived in Australia on 21 September 2007.  On 2 November 2007 the Appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.  A delegate of the first respondent refused the application for a protection visa on 4 January 2008.  On 29 April 2008 the Tribunal affirmed that decision.  The Appellant sought review of the decision by the Federal Magistrates Court and, on 4 September 2008, that application was dismissed.  The Appellant appealed to this Court on 28 November 2008.  Rares J allowed the appeal and remitted the matter to the Tribunal to be determined according to law.

3. The Appellant told the Tribunal that he was a soldier in the Peoples’ Liberation Army (“PLA”) from 1995 to 1998 and had been guaranteed employment upon completion of his service.  He claimed that, when he completed his service, the government failed to provide him with employment, and he independently found work as a self employed driver.

4. The Appellant said that, after a friend committed suicide, he, together with another demobilised soldier, Mr Gui He, organised other demobilised soldiers to promote their rights through pamphlets and an internet café run by Mr Gui He.  He claimed that on 21 July 2007 Mr Gui He’s café was closed by the Public Safety Bureau (“PSB”) due to an anonymous tip‑off, and he and Mr Gui He were detained.  The Appellant claimed that the police did not have any evidence against him.  He was released on 17 August 2007.  Mr Gui He was sent to a labour camp.

5. The Appellant claimed that, after he was released from detention, he organised the distribution of more anti-government pamphlets.  He claimed that the PSB continued to monitor him and that he was often questioned by police.  He said that it was impossible to obtain a passport.  At his request a friend arranged for him to be smuggled to Taiwan and then to Australia on a Taiwanese passport.  He claimed that, since he left China, two of his friends had been arrested, and the police had attended his house with an arrest warrant and a search permit.  He claimed his wife and family have been in trouble and questioned by police.

   REFUGEE REVIEW TRIBUNAL

6. The Tribunal was prepared to accept that the Appellant was a serving army officer between 1995 and 1998, that he and many of his colleagues were disappointed when promises of post-service employment were not honoured, and that he may have pursued written and other personal appeals and complaints through appropriate local and provincial channels.  The Tribunal did not, however, accept that the Appellant was moved to take action to express an anti-government sentiment as claimed following the suicide of his friend and former army colleague in February 2007.  Further, it did not accept that he wrote material which was critical of the government, or that he was involved in a campaign whereby material was distributed in hard copy or on the internet, or that he was detained from 21 July 2007 as claimed, or that he was of adverse interest to the police.

7. In support of these findings, the Tribunal referred to concerns over the documentary evidence the Appellant had provided in support of his claims.  In particular, the Tribunal noted its concern regarding the fact that he did not possess an original copy of a letter he claimed to have authored.  He had produced a photocopy which he said had been obtained from a friend (with whom he had since lost contact) to whom he had given the original before he left China.  The Tribunal found his explanations for this to be unconvincing, and rejected them.  Due to the concerns over the credibility of his evidence, the Tribunal also gave no weight to a purported letter from the Appellant to a colleague, or to a summons allegedly issued against the Appellant’s wife and father.

8. The Tribunal was not satisfied that the Appellant was a person to whom Australia has protection obligations under the Convention, and affirmed the decision under review.

   FEDERAL MAGISTRATES COURT

9. The Appellant filed an application for judicial review of the Tribunal’s decision in the Federal Magistrates Court on 21 July 2009.  That application contained the following grounds:

   1.The Tribunal’s decision was infected with jurisdictional error in that the reasoning process employed by the Tribunal in reaching its decision reveals irrationality, illogicality or unreasonableness.

   2.The Tribunal’s decision was infected with jurisdictional error by making a decision including a reasonable apprehension of bias.

   3.The Tribunal’s decision was infected with jurisdictional error by failing to consider my documentary evidence fairly and independently.

10. In support of ground 1, the Appellant had referred to the Tribunal’s finding that it was not plausible that, in the absence of the two key organisers (himself and Mr Gui He) in late September 2007, the activities of the group would have continued, given the Appellant’s previous evidence that, from 21 July 2007 to 17 August 2007, the group ceased its activities, as both he and Mr He were in detention at that time.  The Federal Magistrate found that the approach adopted by the Tribunal in dealing with this issue involved findings of fact which were open on the material placed before it and did not give rise to jurisdictional error.

11. Under ground 2, the Appellant alleged that the Tribunal had unfairly and incorrectly rejected his major claim that he drafted and organised for the distribution of “letters of appeal”, and that he gave away the original copy of that document but kept a photocopy.  The Federal Magistrate found that the Tribunal arrived at these findings by having regard to inconsistencies in the Appellant’s evidence, a finding which was open to it to make.  In relation to the allegation of bias, his Honour noted that a mere rejection of evidence on the basis of inconsistent evidence did not give rise to an apprehension of bias.  His Honour was not satisfied that a reasonable or fair minded lay observer, properly informed as to the nature of the proceeding, might reasonably apprehend that the Tribunal did not bring an impartial mind to the determination of the Appellant’s case

12. In respect of ground 3, the Federal Magistrate similarly found that it was open to the Tribunal to consider and reject the Appellant’s version of events on the basis of the inconsistencies in his evidence, without such a finding giving rise to jurisdictional error.

13. Finally, the Federal Magistrate noted that the Tribunal had complied with its obligations under Division 4 Part 7 of the Migration Act 1958 (Cth) (“the Act”). In particular, his Honour found that there was no breach of either ss 424A or 425 of the Act.

14. The Federal Magistrate dismissed the application.

    APPEAL TO THIS COURT

15. The notice of appeal to this Court was filed on 20 May 2010.  The Appellant relies on the following grounds:

    “1.      The Federal Magistrates erred in law.

    2.The Federal Magistrates was wrong in finding that the Refugee Review Tribunal (the Tribunal) acted properly in its findings.

    Particulars:

    1.The Tribunal has, unfairly and incorrectly, rejected my major claims for seeking a Protection Visa in Australia; and the Tribunal’s decision has obviously included a reasonable apprehension of bias.

    2.The Tribunal has failed to take a genuine attempt to consider my claims, unfairly and properly. Instead, the Tribunal cavil at my oral evidence at the Tribunal’s hearing.

    3.The Tribunal has made a completely incorrect finding which is obviously illogical and unreasonable, and particularly unfair.”

    [Errors in original]

    As can be seen these grounds are substantially the same as those relied on before the Federal Magistrate.

    SUBMISSIONS OF THE APPELLANT

16. The Appellant appeared in person.  He had the assistance of an interpreter.

17. The Appellant told the Court that his notice of appeal had been prepared for him by a friend.  He was unable to identify the error of law said to have been made by the Federal Magistrate (ground 1) or the “finding” referred to in particular 3 of ground 2.

18. The Appellant made oral submissions.  He complained that the Tribunal had made findings which were unreasonable and illogical.  It had done so in rejecting his claim relating to the retention of a copy of the letter which was presented to the Tribunal, the distribution of pamphlets and the continuation of the work of the group after Mr Gui He had been detained and the Appellant had left the country.  The failure of the Tribunal to accept these claims were said to be indicative of bias. 

19. In summary, the Appellant’s oral submissions sought to reargue the merits of his case under cover of a submission that the Tribunal had acted unreasonably, illogically and unfairly in rejecting those claims.

    CONSIDERATION

20. Illogicality and irrationality in the reasoning of a Tribunal may constitute a basis for judicial review:  see Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367 at 396 (Crennan and Bell JJ). This ground may only succeed in a limited range of cases. In SZMDS Crennan and Bell JJ (at 396) said that:

    “… the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based.  If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”

    Their Honours (at 397) said that “the correct approach is to ask whether it was open to the tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it.”

21. The Tribunal’s reasoning cannot, in my opinion, by said to be illogical or unreasonable in the necessary sense.  The Appellant had told the Tribunal that he had given away the original of the anti-government letter but kept a copy.  He had done this because, had his house been searched and a copy found, he would have been able to say that the copy had been dropped into his letterbox.  This argument would not have been available had the original been found.  The Tribunal rejected this claim for a number of reasons.  The first was that the photocopying machine which had been purchased by the group to multi copy the pamphlets which the members distributed was located in the Appellant’s home.  His possession of a photocopy would not, therefore, have been any less incriminating or dangerous than his possession of the original document.  The Tribunal considered it unlikely that the Appellant’s friend would have retained the original when he knew that the police were “cracking down” on those disseminating the material.  It was also sceptical about the ability of the Appellant to contact the friend and obtain a copy of the document which he wished to present to the Tribunal but was thereafter unable to make further contact in order to provide corroboration for his account.

22. The Appellant had also claimed that two of his colleagues had been detained after he had left China and Mr Gui He remained in detention.  The Tribunal rejected this claim because it considered it to be implausible that the activities of the group would have resumed in the absence of its two organisers.  It considered that any resumption was unlikely given that all activity of the group had stopped in the period between 21 July and 17 August 2007 while both the Appellant and Mr Gui He were detained.

23. This was a case in which different conclusions were open on the evidence.  The conclusions reached by the Tribunal were open to it.  They cannot, therefore, be characterised as being illogical, irrational or unreasonable.  It is not to the point that others may have reasoned differently.

    DISPOSITION

24. The appeal should be dismissed with costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated:       3 August 2010