SZKBS v Minister for Immigration and Citizenship [2007] FCA 1119 (3 August 2007)

Last Updated: 6 August 2007

FEDERAL COURT OF AUSTRALIA

SZKBS v Minister for Immigration and Citizenship [2007] FCA 1119

SZKBS v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 884 OF 2007

BESANKO J
3 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 884 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZKBS Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	3 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The 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.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 884 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZKBS Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BESANKO J
DATE:	3 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from an order made by a Federal Magistrate. The Magistrate dismissed the appellant’s application for constitutional writs in relation to a decision of the Refugee Review Tribunal.

2 The appellant is a citizen of the People’s Republic of China. He arrived in Australia on 8 May 2006 and on 8 June 2006 he applied for a Protection (XA) class visa. On 11 August 2006 a delegate of the Minister for Immigration and Citizenship refused his application. On 13 September 2006, he applied to the Tribunal for a review of that decision.

3 The appellant was invited to a hearing of the Tribunal. He attended and gave evidence and presented arguments in support of his claim. He provided a copy of his passport to the Tribunal. His evidence to the Tribunal was given with the aid of an interpreter in the Mandarin language.

4 The appellant claimed a well-founded fear of persecution (to use the Magistrate’s words) "on the basis of his involvement in anti government protests and set out a history of having come under unfavourable notice, as did his brother-in-law, who he says died in the custody of the authorities".

5 The Tribunal member handed down her decision on 7 December 2006. She decided to affirm the decision not to grant a protection visa to the appellant. The appellant then applied to the Federal Magistrates Court for the issuing of constitutional writs in relation to the Tribunal’s decision.

6 In his appeal to this Court, the appellant contends that the Magistrate erred on two grounds. First, he erred in not finding that the Tribunal had failed to comply with s 424A(1) of the Act. The notice of appeal contains seven paragraphs of particulars in relation to that contention. Secondly, the appellant contends that the Magistrate erred in finding that there was no evidence of bias on the part of the Tribunal.

7 It is necessary to say something about the Tribunal’s reasons for decision. They are very detailed comprising some nineteen pages. After setting out the background to the application for review and the relevant law, the Tribunal member summarised the applicant’s claims and, in particular, the claims he made in the course of giving evidence to the Tribunal. The Tribunal member then made her findings and reasons. She did so under five headings. The Tribunal member dealt first with the appellant’s credibility. She said that she was not satisfied with the appellant’s credibility. She said:

"His evidence at hearing was internally inconsistent, and his evidence on the whole was implausible and far-fetched. The Tribunal finds that the applicant has not been truthful with the Tribunal and cannot be satisfied that he has a well-founded fear of persecution for any Convention reason upon return to China."

8 The Tribunal member then dealt with the appellant’s evidence as to his employment in China. She referred to various aspects of his employment and concluded that the appellant was "clearly willing to manipulate and change his evidence when needed" and she said that that suggested that he has not been truthful with the Tribunal. The Tribunal member found that the appellant’s inconsistent evidence with respect to his employment and his willingness to change his evidence led to the conclusion that he was not a reliable witness in that regard.

9 The Tribunal member then dealt with the appellant’s evidence with respect to his passport and export business. She found that his evidence regarding the reasons he obtained his passport in 2004 to be both internally inconsistent and also to lack credibility. She said that his failure to act in a manner which would be expected suggested that he was not being truthful about his purpose in obtaining a passport and had "grave adverse implications" for his overall credibility.

10 The Tribunal member then dealt with the appellant’s evidence about his involvement in an anti-government protest. She made a number of findings in relation to this matter. Those findings were as follows:

1. The Tribunal member had "grave credibility concerns" about the appellant’s involvement in the protest.
2. The Tribunal member found that the appellant’s claims and evidence as to the timing of the protest lacked credibility.
3. The Tribunal member found that the appellant had not been forthright or truthful in his evidence as to the planning of the protest.
4. The Tribunal member found that the appellant had not been truthful about his claims of being detained and gave that claim "no weight".
5. The Tribunal member found that the appellant’s evidence of his subsequent approaches to the government were inconsistent and "totally implausible" and found that he had "fabricated these claims with a view to enhancing his claim for refugee status".
6. The Tribunal member found that the appellant had fabricated his evidence to the effect that he was detained after learning of his brother-in-law’s death and that he had approached the authorities and he had done that as a means of enhancing his claim for refugee status.

11 The Tribunal member said:

"With regard to the applicant’s brother-in-law, in light of the numerous grave adverse credibility findings above with regard to the applicant’s employment, his involvement in any anti-government protests, his detention and any adverse treatment by the Chinese authorities, the Tribunal cannot be satisfied that the applicant has been truthful in regard to his brother-in-law or that he even has a brother-in-law. The Tribunal therefore gives any claims in relation to this person no weight."

12 The Tribunal member concluded her reasons by saying that she found the appellant’s claims of harm and evidence as to threats of harm by the authorities to be a fabrication and that given her significant adverse findings on credibility in relation to the appellant, she could not be satisfied that the appellant had a real chance of being persecuted for any Convention reason in the People’s Republic of China in the reasonably foreseeable future. She was therefore not satisfied that the appellant’s fear of persecution for a Convention reason was well-founded.

13 As I have said, the first ground of appeal is that the Magistrate erred in failing to find that the Tribunal member had not complied with its obligation under s 424A(1) of the Act. There are seven paragraphs of particulars of that allegation. Paragraphs 1.3, 1.4 and 1.5 contain challenges to various findings of fact made by the Tribunal member and do not allege errors of law, let alone jurisdictional errors. Paragraphs 1.6 and 1.7 contain no more than a statement of the obligation in s 424A of the Act, and an allegation of a failure to comply with the obligation. Paragraphs 1.1 and 1.2 contain allegations I need to address in a little more detail.

14 The appellant contends that the inconsistency in his evidence was the reason, or part of the reason, the Tribunal member affirmed the decision under review and therefore was information within the terms of s 424A of the Act. There are a number of answers to that submission. First, the inconsistencies are not "information" within s 424A of the Act, nor is s 424A engaged by "any" material that contained or tended to reveal inconsistencies in the appellant’s evidence. The High Court made both of these points in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26. Gleeson CJ, Gummow, Callinan, Haydon and Crennan JJ said (at [18], [19]):

"However broadly ‘information’ be defined, its meaning in this context is related to the existence of evidentiary material or documentation not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant ‘information’ was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

Fourthly, and regardless of the matters discussed above, the appellants’ arguments suggested that s 424A was engaged by any material that contained or tended to reveal inconsistencies in an applicant’s evidence. Such an argument gives s 424A an anomalous temporal operation."

15 Secondly, and in any event, the Tribunal drew its conclusions as to the inconsistencies in the appellant’s evidence and his lack of credibility on the basis of information he gave to the Tribunal for the purposes of the application for review. That is within an exception to the obligation in s 424A(1) by reason of s 424A(3)(b). The Tribunal member did refer to material which might be considered country information, although it is unclear whether she relied on that information to reach any of her conclusions. In any event, there is nothing to suggest that the information was specifically about the appellant or another person and, in those circumstances, it is an exception to the obligation in s 424A(1) by reason of s 424A(3)(a).

16 The second ground of appeal is that the Magistrate erred in finding that there was no evidence of bias on the part of the Tribunal member. The particulars of this ground are that the evidence of bias is to be found in the fact that the Tribunal member failed to consider the application properly and fairly, ignored important evidence in the case, and misunderstood the claim and made a mistake in relation to an important finding of fact. In my opinion, the Magistrate was right to conclude that there was no evidence of bias. The Tribunal member made adverse findings as to the appellant’s credit based on the evidence that was before her. Such findings were reasonably open to her on the evidence before the Tribunal. The first respondent’s submission that bias, whether actual or apprehended, should not be inferred from adverse findings of credibility that were open on the evidence, particularly where there is no evidence as to the conduct of the Tribunal in the form of a transcript of the hearing, is correct.

17 In my opinion, no error on the part of the Magistrate has been shown and, in those circumstances, the appeal must be dismissed.

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

Associate:
Dated: 3 August 2007

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	Mr J Mitchell
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	1 August 2007
Date of Judgment:	3 August 2007