SZMJH v Minister for Immigration and Citizenship
[2010] FCA 165
•2 March 2010
FEDERAL COURT OF AUSTRALIA
SZMJH v Minister for Immigration and Citizenship [2010] FCA 165
Citation: SZMJH v Minister for Immigration and Citizenship [2010] FCA 165 Appeal from: SZMJH v Minister for Immigration & Anor [2009] FMCA 1177 Parties: SZMJH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 1367 of 2009 Judge: NICHOLAS J Date of judgment: 2 March 2010 Cases cited: SZMJH v Minister for Immigration & Anor [2009] FMCA 1177 affirmed Date of hearing: 16 February 2010 Date of last submissions: 16 February 2010 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 21 The Appellant appeared in person Solicitor for the First Respondent: DLA Phillips Fox
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1367 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZMJH
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
2 MARCH 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s 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 1367 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZMJH
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE:
2 MARCH 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant appeals from the decision of Federal Magistrate Barnes delivered on 12 November 2009 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 27 March 2009 (see SZMJH v Minister for Immigration & Anor [2009] FMCA 1177). The Tribunal’s decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to refuse to grant a Protection (Class XA) visa to the appellant.
BACKGROUND
The appellant is a citizen of China who arrived in Australia on 24 November 2006. On 30 November 2006 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 16 December 2006. On 16 January 2007 the appellant applied to the Tribunal for a review of that decision. The Tribunal affirmed the delegate’s decision on 13 May 2008. The appellant sought judicial review of this decision, and on 2 October 2008 Driver FM made orders quashing the decision and remitting the matter to the Tribunal to be determined according to law.
Before the Tribunal the appellant claimed that he was a carpenter and that he was hired to complete a project for the Nanchang Railway Bureau that lasted for about 6 months. He stated that he, and the other workers, did not receive their payment from the labour contractor. He and another person, Mr Chen, approached the Nanchang Railway Bureau who advised him that the fee had already been paid to the contractor. The appellant claimed that the contractor had kept the money for himself.
The appellant claimed that on 26 February 2006, after arriving in his home village, he and Mr Chen were arrested by the Public Security Bureau (PSB) and held until 17 March 2006. He stated that he was tortured and mistreated by other people held in detention at the instruction of the police. He claimed that the detention was a result of the contractor bribing the police. He stated that due to the poor treatment of them during the period of detention, Mr Chen required psychiatric hospitalisation. He stated that, together with Mr Chen’s family and friends, he distributed petitions calling for people to fight against the corrupt government and police. He claimed that as a result of this activity he was questioned by police over 10 times between July and September 2006.
The appellant also claimed that he was involved in the organisation of a protest in front of the PSB at Shapu Town on 3 October 2006 which was suppressed by police. According to the appellant, 20 people were arrested but he was able to escape to Hainan Island. He claimed that with the help of a friend he changed his name and obtained a passport in his new name, leaving China on that passport. He claimed that since he had left home the police had gone to his house on many occasions with a warrant for his arrest.
THE TRIBUNAL’S DECISION
The Tribunal found that the appellant was not a credible witness, noting that there were a significant number of inconsistencies in his evidence. The Tribunal noted that the appellant contended that some of the inconsistencies in his evidence were the result of inaccurate interpretation. The Tribunal rejected that contention.
The Tribunal said:
54.However, the Tribunal is not satisfied that the applicant is a witness of truth and is of the view that he has not given a truthful account of his past experiences in China. There were a significant number of inconsistencies in his evidence and he has either not explained these inconsistencies or his explanations are not credible. The Tribunal is also of the view that the applicant’s evidence about significant parts of his claim is not credible. Taken together, the Tribunal is of the view that the applicant is not a witness of truth and has not given a truthful account of his past experiences in China. The reasons follow.
It then identified four particular areas of the appellant’s evidence which it proceeded to scrutinize in some detail. It identified various inconsistencies which it considered significant.
The Tribunal rejected all of the appellant’s claims to fear harm. It found that he did not have a well-founded fear of persecution for a Convention reason if he returned to China.
FEDERAL MAGISTRATES COURT
By application filed in the Federal Magistrates Court of Australia on 27 April 2009 the appellant sought judicial review of the Tribunal’s decision. The application raised the following grounds (particulars omitted):
1.The Tribunal’s decision was affected by apprehended bias.
2.The Tribunal failed to consider my evidence independently, fairly and properly. Once again, the Tribunal’s decision was affected by apprehended bias.
3.The Tribunal failed to have basic knowledge about actual situation in China. Particularly, the Tribunal did not have basic knowledge about the “Chinese year” according to lunar calendar. The Tribunal’s decision has definitely affected by apprehended bias.
4.The Tribunal rejected my evidences without giving any reasonable or logical reasons; and there is no evidence that the Tribunal has fairly considered my evidences.
5.There is no evidence that the Tribunal has fairly and properly considered my evidence. The Tribunal, once again, failed to consider my difficulties in preparing my written claims or giving my evidence at hearing. The Tribunal, once again, has obviously given weight to minor and irrelevant discrepancies between my written materials and my evidence at the hearing. So, the Tribunal’s decision has been affected by apprehended bias.
[Errors in original]
The federal magistrate was not satisfied that the Tribunal decision was affected by jurisdictional error. Her Honour therefore dismissed the application. I shall refer to her Honour’s reasons for doing so where necessary when considering the grounds of appeal relied upon by the appellant in this Court.
APPEAL TO THIS COURT
On 30 November 2009 the appellant filed his notice of appeal from the decision of the federal magistrate. It sets out the following grounds of appeal:
1.His Honour at the Federal Magistrates erred in failing to find that the Refugee Review Tribunal (“the Tribunal”)’s decision was affected by apprehended bias.
2.His Honour at the Federal Magistrates erred in failing to find that the Tribunal did not consider my evidence independently, fairly and properly.
3.His Honour at the Federal Magistrates erred in failing to find that the Tribunal did not have basic knowledge about actual situation in China. Particularly, the Tribunal did not have basic knowledge about the “Chinese year” according to lunar calendar.
4.His Honour at the Federal Magistrates erred in failing to find that the Tribunal rejected my evidences without giving any reasonable or logical reasons; and there is no evidence that the Tribunal has fairly considered my evidences.
5.His Honour at the Federal Magistrates erred in failing to find that the Tribunal repeatedly only gave weight to minor and irrelevant discrepancies between my written materials and my evidence at the hearing; and that the the Tribunal’s decision was repeatedly affected by apprehended bias.
[Errors in original]
SUBMISSIONS OF THE APPELLANT
The appellant did not file any written submissions but he made some brief oral submissions to me through an interpreter. The oral submissions of the appellant were to the general effect that the Tribunal had treated him unfairly by placing excessive weight upon inconsistencies in his evidence and by rejecting that part of his evidence which sought to attribute some of those inconsistencies to errors in interpretation.
GROUNDS OF APPEAL
Despite considerable overlap between the grounds of appeal it is nevertheless convenient to consider each of them in turn.
Ground 1
The federal magistrate rejected the appellant’s contention that the Tribunal’s decision was affected by apprehended bias. The appellant argued before the federal magistrate that the Tribunal gave weight to “minor and irrelevant discrepancies” concerning the appellant’s evidence of his activities in China. Whether or not the discrepancies in the appellant’s evidence were minor or irrelevant was a matter for the Tribunal. The Tribunal has a broad discretion in relation to the making of credibility determinations. It plainly considered the inconsistencies significant to its assessment of the appellant’s credibility and there is no basis for finding that it was not open to the Tribunal to do so. Nor is there anything to suggest that the Tribunal carried out its task in a manner that would lead to a reasonable apprehension that it might not have brought an impartial mind to bear when assessing the appellant’s credibility. Her Honour’s decision in relation to the allegation of apprehended bias was correct. This ground of appeal is rejected.
Ground 2
To the extent that this ground of appeal raises the same issue considered in relation to ground 1 it must be rejected for the same reasons. To the extent that it seeks to raise different issues then I do not consider it to be a proper ground of appeal. This ground of appeal is rejected.
Ground 3
The federal magistrate rejected this complaint and I did not think it was open to her Honour to do otherwise. The Tribunal’s reasons disclose that it obtained information to which it had regard relevant to the situation in China and the date of the Chinese New Year in 2006. There was no attempt made before me to demonstrate that the information was incorrect or inadequate in any particular respect. Nor does there appear to me to be anything illogical about the way in which the Tribunal used the information referred to in its reasons in reaching its decision. This ground of appeal is rejected.
Ground 4
The federal magistrate dealt with this particular complaint and rejected it. I agree with her Honour’s reasons for doing so. There is no illogicality in the Tribunal’s reasons. And it is impossible to characterise the Tribunal’s decision, considered in the light of the reasons it has given, as arbitrary or capricious or being one that no reasonable tribunal could have reached. This ground of appeal is rejected.
Ground 5
This ground of appeal repeats, with slight elaboration, the first ground of appeal. As already stated, the federal magistrate was not satisfied that the decision of the Tribunal was affected by apprehended bias. I am satisfied that the federal magistrate was correct. This ground of appeal is rejected.
DISPOSITION
I am not satisfied that the federal magistrate erred in her determination of the appellant’s application for review. That is enough to dispose of the appeal. However, looking at the appellant’s case more broadly, I am not satisfied that the Tribunal’s decision was affected by any jurisdictional error. This ground of appeal is rejected.
The appeal must be dismissed with costs.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 2 March 2010