SZMIB v Minister for Immigration and Citizenship

[2010] FCA 1051

FEDERAL COURT OF AUSTRALIA

SZMIB v Minister for Immigration and Citizenship [2010] FCA 1051

Citation:		SZMIB v Minister for Immigration and Citizenship [2010] FCA 1051
Appeal from:		SZMIB v Minister for Immigration & Anor [2010] FMCA 152
Parties:		SZMIB v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		QUD 91 of 2010
Judge:		REEVES J
Date of judgment:		27 September 2010
Date of hearing:	16 August 2010
Place:	Alice Springs (Heard in Brisbane)
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	27
Counsel for the Appellant:	The Appellant appeared in person, assisted by an interpreter
Solicitor for the First Respondent:	Clayton Utz
Counsel for the Second Respondent:	The Second Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 91 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMIB
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE OF ORDER:	27 SEPTEMBER 2010
WHERE MADE:	ALICE SPRINGS (HEARD IN BRISBANE)

THE COURT ORDERS THAT:

1.The notice of appeal filed on 22 March 2010 be dismissed.

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
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 91 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMIB
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE:	27 SEPTEMBER 2010
PLACE:	ALICE SPRINGS (HEARD IN BRISBANE)

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate delivered on 4 March 2010, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).

   BACKGROUND AND PROCEDURAL HISTORY

2. The appellant is a citizen of China who arrived in Australia on 9 November 2007.  On 7 December 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.  A delegate of the Minister for Immigration and Citizenship (“the Minister”) refused that application.  The appellant then applied to the Tribunal for a review of that decision.  The Tribunal subsequently affirmed the delegate’s decision.  The appellant then made an application for judicial review of the Tribunal’s decision to the Federal Magistrates Court of Australia.  On 20 October 2008, Raphael FM upheld the appellant’s appeal and remitted the matter to the Tribunal for reconsideration according to law.  The Tribunal, differently constituted, affirmed the delegate’s decision.  On 4 March 2010, Jarrett FM dismissed the appellant’s application.  It is this decision which is the subject of the present appeal.

   CLAIMS OF POLITICAL PERSECUTION

3. The appellant claimed to have been discriminated against in China as a result of his involvement with an anti-government group which advocated the rights of demobilised soldiers of the People’s Liberation Army (“PLA”).  The appellant claimed that he served as a soldier in the PLA from December 1998 until December 2006.  The appellant claimed that he joined the PLA because of a promise from the government that it would secure employment for him once he completed his military service.

4. The appellant claimed that after he became demobilised in late 2006 the government failed to arrange employment for him.  The appellant claimed that he, along with a number of his friends, organised for petitions to be sent to the government on behalf of demobilised soldiers.  As a result, the appellant claimed that he was required to attend a political study class organised by the Public Security Bureau (“PSB”) where he was requested to reveal who had sent the petitions. 

5. The appellant claimed that in August 2007, his friend Mr Liu, one of the organisers, of the petition was arrested.  Further, the appellant claimed that because of a protest which the appellant organised in retaliation to Mr Liu’s arrest, he too was arrested and placed in detention.  The appellant claimed that while in detention he was subjected to physical and mental persecution, and that because he feared that he might die in prison he confessed to the PSB.

6. Following his release from prison, the appellant claimed that he needed to escape from China because of the troubles he was facing from the local authorities and the PSB.  The appellant claimed that he is now regarded as one of the main organisers of the anti-government movement and will face persecution if he is to return to China.

   THE TRIBUNAL AFFIRMS THE DELEGATE’S DECISION – APPELLANT NOT A CREDIBLE WITNESS

7. The Tribunal accepted that the appellant served in the PLA for a total of eight years.  However, the Tribunal did not accept that the appellant was telling the truth in relation to his claims to having been involved in anti-government activity in China.  Nor did the Tribunal accept that, with a group of friends, the appellant drafted anti-government petitions which were sent to the government on behalf of demobilised soldiers. 

8. The Tribunal made adverse findings about the appellant’s credibility because of a number of inconsistencies with his evidence.  As a result, the Tribunal did not accept that: there was a sit-in protest involving demobilised soldiers; that the appellant was detained by the authorities for one month; that the appellant was physically and mentally persecuted; or that he was forced to confess his anti-government activities.

9. Accordingly, the Tribunal found that there was not a real chance that the appellant would be persecuted for reasons of his political opinion if he were to return to China now, or in the reasonably foreseeable future.

   THE FEDERAL MAGISTRATE FINDS NO JURISDICTIONAL ERROR

10. The appellant filed an application for judicial review in the Federal Magistrates Court, which  raised the following grounds:

    1.RRT did not use favorable cases to my application.

    2.Procedural fairness has been denied.  RRT failed to assess all the document I provided to them.

    [Errors in original]

11. In relation to the first ground, Jarrett FM accepted that the Tribunal adequately set out the relevant law contained in the Migration Act 1958 (Cth) (“the Act”), the Refugee Convention and various authorities. Furthermore, the Federal Magistrate noted that nothing contained in the Tribunal’s reasons was controversial and that it referred to all the relevant authorities in its decision. Accordingly, in relation to this ground, the Federal Magistrate decided that the Tribunal’s findings about the appellant’s claims were open to it on the material before it and should not be disturbed.

12. In relation to the second ground of appeal, Jarrett FM noted that on the previous occasion that this matter was before the Federal Magistrates Court, Raphael FM expressed some concern about the Tribunal’s (differently constituted) treatment of allegedly official Chinese Government documents provided by the appellant.  However, Jarrett FM noted that Raphael FM did not decide the case on this point.

13. Jarrett FM then went on to find that the Tribunal (the decision of which was the subject of review before Jarrett FM) considered, but ultimately did not accept the authenticity of the relevant documents.  His Honour held that the Tribunal gave clear findings about this issue based on probative material and logical grounds.  Furthermore, his Honour found that the Tribunal fulfilled its duty to raise with the appellant its concerns about the authenticity of the relevant documents; it raised its concerns with the appellant more than once; it allowed him time to respond; and it made it clear that he could seek further time to make submissions if he wished.  Jarrett FM, therefore, found that the Tribunal had committed no breach of procedural fairness.

14. The Federal Magistrate therefore dismissed the appellant’s judicial review application for want of jurisdictional error.

    THE CONDUCT OF PRESENT APPEAL

15. On 22 March 2010, the appellant filed a notice of appeal in this Court which alleged that:

    1.Refugee Review Tribunal had bias against me and did not make fair decision for my application

    2.I lodged application to the Federal Magistrate Court, but the Judge dismissed my application on 04^th March 2010. It is not fair. I fear to go back to China as I will be put in jail.

    3.I believe that my application was not considered reasonable by the judge at the Federal Magistrates Court. RRT failed to consider my risk to return to China.

    [Errors in original]

16. At the hearing before me on 16 August 2010, the appellant appeared in person, unrepresented, but assisted by an interpreter.  Mr Yuile appeared for the first respondent.

17. The appellant relied on his application and made a number of oral submissions, the essential complaint being that he did not understand why the Federal Magistrate made the decision that he did.  I decided to adjourn the matter briefly and asked Mr Yuile, with the assistance of the interpreter, to attempt to explain to the appellant the Federal Magistrate’s reasons.  When the hearing resumed, Mr Yuile told me that he had explained the Federal Magistrate’s reasons to the appellant and why he had dismissed his application.  He also told me he had explained the role of this Court on appeal.

18. Notwithstanding these explanations, the appellant still submitted that the Federal Magistrate did not give a reasonable explanation of his decision in his published reasons.  Further, the appellant was concerned that the Tribunal did not seek to obtain the originals of many of the documents that he had relied upon and that the Tribunal found against him because of this.

19. Mr Yuile relied on the outline of written submissions filed on behalf of the first respondent and made oral submissions elaborating on their content.

    CONSIDERATION

20. None of the grounds raised in the appellant’s notice of appeal was raised before the Federal Magistrate.  The authorities clearly establish that leave to argue a ground of appeal not raised before the primary judge, should only be granted if it is expedient in the interests of justice to do so:  see O’Brien v Komesaroff (1982) 150 CLR 310 at 319 and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 at [38]. However, since the appellant is unrepresented and this is obviously a significant matter for him, I consider it is in the interests of justice to proceed to deal with the grounds raised in his notice of appeal.

21. The appellant’s first ground of appeal does not allege any error in the decision of the Federal Magistrate, but rather that the Tribunal “had bias against [him]” when deciding his application.  On a generous interpretation, I take this ground to allege that the Federal Magistrate erred by not finding that the Tribunal’s decision was affected by bias.  No particulars have been provided of this allegation and the appellant has not provided any evidence to support it – he appears to rely solely upon the Tribunal’s reasons for decision.  There is clear authority that an allegation of bias such as this must be distinctly made and proven:  see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [69] per Gleeson CJ and Gummow J. Furthermore, it has been held that it is only in rare and extreme circumstances that bias on the part of the Tribunal can be established simply by referring to the Tribunal’s reasons for decision: see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J and SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [16] per Tamberlin, Mansfield and Jacobson JJ.

22. In the absence of particulars, it is almost impossible to assess whether there is any merit in the appellant’s allegations of bias.  Nonetheless, from my reading of the Tribunal’s reasons for decision, I do not consider this is one of those rare and extreme circumstances where bias is established by reference to those reasons.  From its reasons, it is apparent that the Tribunal made a fair, balanced and comprehensive assessment of the appellant’s claims.  The appellant’s first ground of appeal must therefore be rejected.

23. As to the appellant’s second ground of appeal it, too, is unparticularised and in the most general of terms.  This ground merely alleges that the decision of the Federal Magistrate is not fair and that he fears returning to China because he claims he will be put back in jail.  This ground does not allege any error, let alone any jurisdictional error, in the decision of the Federal Magistrate.  Since the role of this Court is to correct error on the part of the Federal Magistrate and since none has been alleged, the appellant’s second ground of appeal must also be rejected.

24. The appellant’s third ground of appeal can be separated into two parts.  First, the appellant alleges that the Federal Magistrate did not consider his application reasonably.  Secondly, the appellant alleges that Tribunal failed to consider the risk faced by the appellant if he were to return to China.  In relation to the latter, I will take the same approach as mentioned above (see at [21]), viz that this second claim alleges that the Federal Magistrate erred by not finding that the Tribunal’s decision had adequately considered this risk.

25. In relation to the allegation of unreasonableness, what must be shown is that the decision was unreasonable in the Wednesbury sense, viz that the decision was so unreasonable that no reasonable decision maker could have made it:  see Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [15] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. Here, there is no basis for concluding that the Federal Magistrate’s decision was unreasonable in this sense. The Federal Magistrate carefully considered the claims made by the appellant and the relevant parts of the Tribunal’s decision, and gave comprehensive and rational reasons for his conclusions that the Tribunal made no error. The first part of this third ground of appeal must therefore be rejected.

26. In relation to the second part of this third ground of appeal, I have summarised at [8] and [9] above how the Tribunal rejected the appellant’s claims on credibility grounds and, therefore, found there was not a real chance he would suffer persecution if he were to return to China. The Federal Magistrate was not asked to deal with this specific issue, but I have set out at [11] above his general conclusions about the adequacy of the Tribunal approach to the appellant’s claim. Furthermore, I have summarised at [13] above how the Federal Magistrate dealt with the Tribunal’s conclusions in relation to the related issue of the documents the appellant provided to the Tribunal. Having reviewed the Federal Magistrate’s decision in both these respects, I am unable to detect any error that would justify my interfering with his Honour’s decision. For these reasons, the second part of the third ground of appeal must also be rejected.

    CONCLUSION

27. For these reasons, this appeal must be dismissed.  I so order.  I will hear the parties on the question of costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:

Dated:        27 September 2010