SZMSK v Minister for Immigration and Citizenship

[2009] FCA 866

FEDERAL COURT OF AUSTRALIA

SZMSK v Minister for Immigration and Citizenship [2009] FCA 866

SZMSK and SZMSL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 356 of 2009

STONE  J
12 AUGUST 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 356 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMSK
First Appellant

SZMSL
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	STONE  J
DATE OF ORDER:	12 AUGUST 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The first 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.

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
GENERAL DIVISION	NSD 356 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMSK
First Appellant

SZMSL
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	STONE  J
DATE:	12 AUGUST 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. The appellants, a mother and daughter, who claim to be citizens of China arrived in Australia on 1 January 2007.  They entered Australia on Indonesian passports issued in names other than those under which they lodged their applications for protection visas on 8 January 2008.  Their applications were refused in turn by a delegate of the first respondent and the Refugee Review Tribunal.  An application for review in the Federal Magistrates Court was dismissed on 9 April 2009; SZMSK & Anor v Minister for Immigration & Anor [2009] FCMA 299.  They now appeal from that decision.  The second appellant claims as a member of her mother’s family unit and does not advance any individual claim to be a refugee.  As the second appellant is a minor, at the hearing of the appeal I made an order pursuant to O 43 r 2 of the Federal Court Rules, appointing her mother as her guardian for the purposes of the appeal.  In these reasons I shall refer to the mother as the appellant. 

2. The appellant claims that she is a citizen of China and that she and her husband were Christians in an underground church.  She claims on 20 August 2006 her husband and other relatives were arrested, however she was not present at the time.  She went into hiding to avoid arrest before fleeing China on false Chinese passports, arriving in Indonesia on 18 September 2006.  On 1 January 2007 the appellants left Indonesia for Australia.  The appellant claimed that she only visited Indonesia on route to Australia and that she was unable to stay in Indonesia as the government worked closely with the Chinese government concerning Chinese nationals in Indonesia.

   THE TRIBUNAL DECISION

3. The Tribunal rejected the appellant’s claims in their entirety.  It did not accept that the appellant was born in China, had lived in China all of her life or had fled China on 18 September 2006.  The Tribunal also rejected her claims regarding China and her claim that she could not return to Indonesia.  In making this finding the Tribunal noted that, in the process of applying in Indonesia for visas to enter Australia, the appellant had submitted medical examination reports, dated 15 September 2006 containing a photo of her and her daughter.  The Tribunal observed that the photos were verified by the Australian embassy and therefore concluded that the appellant and her daughter attended medical checks in Indonesia on 15 September 2006, before the date she claimed to have departed China (18 September 2006).  The Tribunal also referred to other information that indicated that the appellant was in Indonesia before the claimed date of travel, including that an Indonesian passport was issued to her in 2004 and before that, in 1997, indicating that the appellant was a citizen of Indonesia.

4. The Tribunal found that the appellant was not a credible witness and that she had fabricated her claims concerning the events which she said led her to flee China.  The Tribunal rejected her claims and concluded that the appellant was an Indonesian national.  The Tribunal therefore assessed her claims to fear persecution against the situation in Indonesia.  However, having found that the appellant was not a fleeing Chinese national but an Indonesian national who was able to reside in Indonesia, it rejected her claims regarding Indonesia.  The Indonesian government’s co-operation with the Chinese government did not lead her to have a well-founded fear of persecution.

   THE FEDERAL MAGISTRATE’S DECISION

5. Before the Federal Magistrate the appellant claimed: that she would be at risk of persecution if she returned to China; that the Tribunal failed to understand her claims; that the Tribunal failed to provide her with natural justice; and that the Tribunal refused her application without reference to any proper grounds or conducting a proper investigation.

6. The Federal Magistrate held that the appellant’s first ground was a challenge to the Tribunal’s factual finding that the appellant was not a Chinese citizen, but a citizen of Indonesia.  It was an attempt to engage the Court in an impermissible merits review of the Tribunal decision.

7. In relation to the appellant’s second claim, his Honour found that the Tribunal clearly understood the appellant’s claims but rejected them in their entirety.  His Honour noted that the appellant had not specified any relevant matter that the Tribunal failed to consider and found that no such claim was apparent from the Tribunal Decision Record. 

8. Thirdly, the Federal Magistrate was satisfied that the Tribunal undertook a thorough analysis of the appellant’s Indonesian documents as well as independent country information about document fraud in China. It considered the evidence which the appellant claimed supported her contention that she and her daughter were Chinese nationals. His Honour was satisfied that the Tribunal complied with ss 425, 425A, 424A(1) and 424AA of the Migration Act 1958 (Cth) and that the appellant had not been denied natural justice.

9. Finally, his Honour stated that there was no evidence of any readily available factual material that was likely to be of critical importance in relation to a central issue or determination that was not obtained.  His Honour found that once the Tribunal did not accept that the appellant was a national of China, it had no obligation to make any inquiry about matters concerning her claim to have been persecuted in China. His Honour was satisfied that the Tribunal did not refuse the appellant’s application without proper grounds.

10. Having found no jurisdictional error in the Tribunal decision the Federal Magistrate dismissed the application.

    THIS APPEAL

11. The notice of appeal filed in this Court on 28 April 2009, alleges that the appellant will be at risk of persecution if she returns to China.  In addition it raises four grounds of appeal, which in summary are that:

    1.The Federal Magistrate failed to understand the appellant’s claims and failed to consider relevant matters. The Federal Magistrate also failed to understand that the Tribunal erred by not notifying the appellant of adverse information which formed part of the reason for affirming the decision.

    2.The Tribunal breached s 424 of the Act and failed to provide the appellant with natural justice.

    3.The Tribunal refused the application without reference to any proper grounds or undertaking a proper investigation. The Tribunal approached the decision with a “pre setup” mind.

    4.The Federal Magistrate failed to take into account that the appellant was having difficulties with the interpreter during the Tribunal hearing.

12. Grounds 3 and 4 were not raised before the Federal Magistrate and accordingly the appellant requires the leave of the Court to raise them for the first time on appeal. Strictly speaking the same applies to ground 2 however the Federal Magistrate did consider s 424A of the Act and, as the written submissions for the First Respondent pointed out, “was satisfied that there was nothing to suggest that the Tribunal had not engaged in a course of oral disclosure at the hearing as it said it did, as permitted by s 424AA”. The alleged breach of s 424 is not particularised and there is nothing in the material before me to support this claim.

13. At the hearing of the appeal before me the submissions of the appellant, who appeared for herself and her daughter with the assistance of an interpreter, all focused on taking issue with the factual findings of the Tribunal and its failure to investigate her claims about her experiences in China for itself.  The appellant did not refer to any difficulties with the interpreter at the Tribunal hearing and there is nothing before me to suggest that this ground has any substance.

14. Similarly the appellant did not pursue her claim that the Tribunal was biased against her and had prejudged her application.  A claim of bias is a very serious charge to make and without any argument or supporting evidence I would not allow such a claim to be made for the first time on appeal.  There was no such argument or supporting evidence in this case.

15. The appellant criticised the Federal Magistrates Court for failing to review the Tribunal’s factual findings and implored this Court to do so.  As is well established, and as I explained to the appellant, neither this Court nor the Federal Magistrates Court has such jurisdiction.  The merits of the appellant’s claims are solely within the province of the Tribunal.

16. That being so there is very little else that need be said about this appeal.  The appellant’s problem is that the Tribunal did not believe her account of the facts upon which she based her application for a protection visa.  This is not a case in which some elements of the appellant’s claims were in doubt.  She claimed to fear persecution in China and the Tribunal found that she was not a Chinese national and had not experienced the difficulties which she claimed to have experienced in China.  Those findings were open to the Tribunal.  Once it had accepted that the appellant’s account was fabricated it was not obliged to investigate the details of that account. 

17. The appellant’s claims were considered carefully and in detail by the Tribunal.  In my opinion, the approach of the Federal Magistrate and his Honour's conclusion to dismiss the application for review was correct.  That being so the appeal must be dismissed.  As the second appellant is a minor and has had no active role in the appeal she should not be subject to a costs order however, the first appellant must pay the first respondent’s costs of the appeal.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:
Dated:       12 August 2009

The appellants appeared in person with the assistance of an interpreter
Counsel for the Respondents:	B K Nolan
Solicitor for the Respondents:	DLA Phillips Fox

Date of Hearing:	11 August 2009
Date of Judgment:	12 August 2009