SZKLE v Minister for Immigration & Citizenship [2007] FCA 1769 (8 November 2007)

Last Updated: 19 November 2007

FEDERAL COURT OF AUSTRALIA

SZKLE v Minister for Immigration & Citizenship [2007] FCA 1769

SZKLE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD1461 OF 2007

JESSUP J
8 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1461 OF 2007

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

JUDGE:	JESSUP J
DATE OF ORDER:	8 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the costs of the respondent Minister fixed in the sum of $1,700.

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	NSD1461 OF 2007

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

JUDGE:	JESSUP J
DATE:	8 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 Before the court is an appeal from a judgment of the Federal Magistrates Court, given on 11 July 2007, dismissing an application by the appellant for orders of the kind to which s 476 of the Migration Act 1958 (Cth) ("the Act") refers in respect of a decision of the Refugee Review Tribunal, given on 13 February 2007 and handed down on 27 February 2007, by which the Tribunal affirmed an earlier decision of a delegate of the respondent Minister not to grant the appellant a protection visa under the Act.

2 The appellant is a citizen of the People’s Republic of China, and came to Australia on 5 August 2006. He applied for a protection visa, it seems, substantially upon the ground that he had a well-founded fear of being persecuted for reasons of his political opinion. According to the claims he made, and the evidence which he gave before the Tribunal, that opinion arose out of a series of events surrounding the activities of himself and others in the region where he lived and worked in China. He and they had been eel farmers, but, according to what he told the Tribunal, first they and then he were forced to give up their businesses by reason of the unscrupulous activities of a Mr He and of the cooperation which Mr He obtained from local officials who, the appellant alleged, were corruptly taking benefits from Mr He.

3 The Tribunal appears to have given careful consideration to all of the claims made by the appellant, and decided the matter against him very largely because of its assessment of his credibility. There were many key elements in the appellant’s factual case before the Tribunal which were simply not accepted at that level. Once the Tribunal had rejected the appellant’s factual case to the extent that it did, it was inevitable that it would reach the conclusion that he was not entitled to a protection visa under the Act. The appellant’s application in the Federal Magistrates Court contained one ground only, namely that the Tribunal failed to carry out its statutory duty to review his application. This ground was particularised with assertions that the Tribunal’s reasons did not demonstrate that it followed a logical path of reasoning; that the Tribunal had not explained why the appellant’s claims were rejected; and that the only basis for rejecting all of the appellant’s claims displayed in the Tribunal’s decision was that the appellant initially found a practical solution to his problem that precluded him from later relying, as a last resort, on a practical measure; and that there was insufficient basis for that finding on the part of the Tribunal.

4 The actual complaint which the appellant makes against the Tribunal is not very well revealed by these particulars. It is, however, mentioned in one paragraph of the reasons for judgment given by the Federal Magistrate. For the most part, his Honour took the view that the extensive submissions made by the appellant before him "did not rise above a contest over the merits of the Tribunal decision." However, his Honour noted that the appellant believed that the Tribunal committed a procedural error in the course of making adverse credibility findings against him, particularly insofar as the appellant sought to attack the Tribunal’s reasoning about his delay of about three months in taking action to protest against the local authority’s action in cutting off his water supply and in preventing him from using water from wells he had dug in order to keep his farm in production.

5 In order to understand what the Federal Magistrate meant by these observations, it is necessary to return to the decision of the Tribunal. It appears from that decision that the appellant’s case is that Mr He initially tried to purchase all of the eel farms in the area in which the appellant carried on his business at much less than their proper value. According to the appellant, when the farmers resisted those attempts, Mr He was able to prevail upon the local authority to cut off the water supply, thereby directly imperilling the viability of the eel farming businesses who relied upon that water. Most, if not all, of the other farmers in the area, according to the appellant, very quickly went out of business as a result of the local authority’s actions. However, the appellant was able to continue farming because he and those working with him sunk some wells from which they obtained water in order to continue the operation of their eel-farming business. This prompted a further initiative on the part of the local authority, which was to raise questions as to the quality of the water being used by the appellant, and to take samples of that water for testing, during which time they required the appellant to suspend his operations. Although the authority originally gave the appellant to believe that it would return very promptly with the results of testing those samples, it turned out that a period of more than three months passed without the authority either informing the appellant of the results of its tests, or permitting him to resume business. It was after about that time that the appellant commenced to organise protests by way of pamphlets and similar publications against the corrupt practices of the authority and the unscrupulous business tactics of Mr He. In its written decision, the Tribunal made it clear that it had difficulty with the appellant’s evidence, particularly insofar as he said that he had allowed those three months to pass without taking any action, by way of protest or otherwise, against the authority. The unlikelihood of the appellant having declined to take any action by way of protest over those three months and yet, at the same time, having embarked upon protests after the three months was something which, for the Tribunal, cast a significant shadow over the appellant’s credibility.

6 In his case before me today, the appellant said that it was unfair for the Tribunal to have proceeded in this way. He said that had the Tribunal considered his case as a whole, it would have been apparent to it why he did not protest within the first three months, and that had the Tribunal asked him directly about the concerns that it had in this regard and advised him that those concerns went to the question of his credibility, he might well have said something to the Tribunal which would have allayed its concerns.

7 In that passage of its written decision in which it set out the course of the hearing before it, the Tribunal referred to a number of questions which it had put to the appellant. It said:

The applicant told the Tribunal that the water authorities, which he confirmed were located in Fuqing, gave no reason for cutting off the supply of water to his farm. The Tribunal asked whether this was a matter where he could lodge an appeal or petition to the authorities, given they gave no reason for their action. The applicant told the Tribunal that in China, it was impossible to appeal against the government, as a citizen could never win. It was different from the situation in Australia. The Tribunal told the applicant that it did not seem credible that he would not have taken action to protest the actions of the water authority, given that he was prepared to undertake protests later against the loss of his and other eel farms. The applicant stated that it was impossible to win against the authorities through any court action. He stated that many authorities were involved in this issue such as the water authorities, the PSB, the Yuxi government, and the Environment and Health Bureau. He stated that in this situation, the only channel of action was through petitions and appeals against them.

In that part of its decision in which it set out its findings and reasonings, the Tribunal said:

The Tribunal does not accept that the applicant has given credible evidence regarding the actions of the Fuqing water authorities in cutting off the applicant’s and other farmers’ water supply, and his response to those actions. The actions of the water authorities, according to the applicant’s own evidence to the tribunal, quickly resulted in neighbouring eel farms having to close. The Tribunal does not accept as credible that the applicant would not have approached the water authorities to find out the reason for their actions, and taken steps to try to have the water supply resumed, given the actions would have had such a drastic effect on his farm operations. The applicant told the Tribunal that when the water authorities cut off his water supply, he did not take any action by way of appealing against the decision or lodging a petition against it, because it was impossible to take such action against government authorities in China. He stated that citizens could never win against the authorities. Yet approximately 3 months after this event, the applicant was prepared to distribute pamphlets and protest against the actions of the authorities, after his own farm closed down, even though other villagers advised against it on the basis that it was not possible to ‘win’ against the government. This was the same reason the applicant gave to the Tribunal for not appealing or petitioning against the actions of the Fuqing water authorities. Yet the applicant told the Tribunal that he wanted to persuade the local villagers to appeal against the authorities and to try to maintain their rights. He also indicated to the Tribunal that he was young and not willing to give up. The tribunal also finds it implausible that all the other farms in the village quickly closed down when their water supply was cut off, but the applicant was the only one who was able to continue operating his farm by sinking wells on his property.

I drew these passages – particularly the passage in which the Tribunal records the questions and other matters that it put to the appellant – to the appellant’s attention, and he did not suggest that the course of the hearing before the Tribunal was otherwise than as indicated in them.

8 It does seem fairly clear that the Tribunal’s concern about the appellant’s credibility, to the extent that it was based upon his not having taken any action to protest against the actions of the water authority in the three months after it cut off water supply to the eel farms, was sufficiently drawn to his attention during the course of the hearing to exclude any suggestion that the proceedings were unfair. I do not consider that the use which the Tribunal made of this circumstance in its reasons for decision fairly went beyond the matters to which it had drawn the appellant’s attention during the course of the hearing. Neither am I persuaded that, on a fair reading on the whole of the Tribunal’s findings and reasons, it did not look at the appellant’s claims as a whole and consider the significance of his inaction over the relevant three months in the context of all the other evidence in the case and the claims which he made.

9 Returning to the reasons of the Federal Magistrate, his Honour dealt with the present point in paragraph 6 of those reasons as follows:

Further, I note from the record of the Tribunal’s decision ... that the applicant had the opportunity to discuss with the presiding member his concerns about the credibility of this claims. To the extent that the tribunal was under an obligation to observe procedural fairness under the general law, the applicant has not demonstrated a breach of that duty.

I drew the appellant’s attention to par 6 of the reasons of the Federal Magistrate, and nothing which he said in response has given me any cause to think that his Honour erred in the way that he disposed of the point in question, which is the same point as agitated by the appellant in the appeal before me today. Neither can I see any other respect in which his Honour erred.

10 I can understand that the appellant takes the view that very substantial and quite significant parts of the evidence which he gave to the Tribunal were not accepted, and that the Tribunal simply did not believe much of his story. However, the Tribunal is the only body which has the authority to decide primary questions of fact in cases of this kind, and to make an assessment of the credibility of persons who make claims and give evidence before it in that regard. The Federal Magistrates Court does not have jurisdiction to decide whether the Tribunal was right or wrong, or correct or incorrect in the findings which it made. The nature of the appellant’s application to that court was necessarily based upon an allegation that the Tribunal either exceeded, or constructively failed, to exercise its jurisdiction. These are very different questions from the ones which are within the Tribunal’s jurisdiction and which relate to fact-finding, credibility and the like. The Federal Magistrates Court did not have it within its power to review the factual correctness of the findings of the Tribunal, or to take a different approach on issues of credibility. It was empowered to intervene only if a jurisdictional challenge of the kind which the appellant made succeeded, and it is clear from the reasons given by his Honour below that, although the appellant raised a number of apparently sincerely-felt objections to the Tribunal’s fact-finding process, his case was a considerable distance from establishing any want or excess of jurisdiction.

11 For the above reasons, I propose to dismiss the appeal.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated: 16 November 2007

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Ms N Johnson
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	8 November 2007
Date of Judgment:	8 November 2007