SZKTG v Minister for Immigration & Citizenship [2008] FCA 131 (21 February 2008)

Last Updated: 22 February 2008

FEDERAL COURT OF AUSTRALIA

SZKTG v Minister for Immigration & Citizenship [2008] FCA 131

SZKTG AND SZKTH v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

No NSD 1922 of 2007






FINN J
21 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1922 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZKTG First Appellant SZKTH Second Appellant
AND:	MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	FINN J
DATE OF ORDER:	21 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of the appeal in the sum of $2,200.









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 1922 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZKTG First Appellant SZKTH Second Appellant
AND:	MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	FINN J
DATE:	21 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The appellants, who are husband and wife, are Chinese nationals. Only the male appellant ("the appellant") has made claims to having a well founded fear of persecution for a Convention reason. His wife’s application for a protection visa under the Migration Act 1958 (Cth) hangs off his application. The appellant’s claims before the Refugee Review Tribunal were based on the Convention grounds of political opinion and membership of a particular social group. As described by the Tribunal they were as follows:

"Essentially, the applicant claims to have organised in 2006 in Ningbo an Association to represent migrant workers, particularly self-employed people from Fujian, who had been bullied by locals and the local government. The applicant claims that he set up the organisation (the Ningbo Fujian Fellowship Association or the Ningbo Fujianese Association) to confront these local rogues and the government and to fight for human rights and for members of the Association to help each other. The applicant claims that the aims of the Association were respect for the Constitution, respect for human rights and to expose corrupt officials. His claim is that he was detained by the authorities and interrogated three times in April 2006 and was warned not to organise activities. He also claims that he was involved in the distribution of 30,000 leaflets calling for the Constitution to be upheld and for human rights to be respected. He further claims that the Association was reactivated in September 2006 and held in secret because they could not get recognition and were dubbed as an underground organisation. He claims that he was questioned a further ten times from September 2006. He fears further adverse treatment if he were to return to China."

2 Apart from accepting the appellants’ claims to be Chinese nationals, the Tribunal did not accept any of their other claims. The Tribunal’s reasons for rejecting them turned crucially on inconsistencies in the male appellant’s oral evidence. These were summarised in the following paragraph:

"The totality of the applicant’s oral evidence shows a propensity to tailor his evidence in a manner which achieves his own purpose. In reaching this view the Tribunal has had regard to the inconsistency in the applicant’s evidence at the Tribunal hearing as to the date he was first questioned by the PSB and the significant inconsistency between his evidence that the PSB did not know who the founding members of the Association were even though he was questioned 13 times and had openly approached government and municipal organisations as well as the PSB on behalf of the Association and yet the PSB arrested a mere member of the Association. The Tribunal does not accept his evidence that the PSB detained him for 5 hours and sometimes did not ask him a single question after interrogating him on 13 different occasions. The Tribunal has also had regard to the inconsistency between the evidence of the applicant that he left China legally through Shanghai and the independent information about the stringency of border controls consulted by the Tribunal."

3 I would foreshadow that the matters relied upon in this paragraph were in issue before the delegate in his decision to refuse a protection visa and, in any event, were subsequently put to the appellant at the Tribunal hearing. The appellant’s evidence being rejected systematically, the applications for protection visas were rejected.

4 The appellants instituted judicial review proceedings in the Federal Magistrates Court relying upon three grounds of review. The first alleged the Tribunal failed to comply with its obligations under s 424A(1) of the Act which relevantly was particularised as follows:

"1.1 According to the Tribunal’s decision, the Tribunal has considered the information, which there was inconsistency in my evidences at the Tribunal’s hearing as to the date I was first questioned by the PSB and significant inconsistency between my evidence that the PSB did not know who the founding members of the Association were even though I was questioned and had openly approached government and municipal organisation as well as the PSB on behalf of the Association and yet the PSB arrested a member of the Association, as the reason or part of [the] reason for affirming the decision that is under the review.

1.2 I, however, do not accept that I have given inconsistent information or evidences at the hearing before the Tribunal. I strongly believe that my information or my claims have been misstated or misunderstood by the Tribunal."

5 The second was that the Tribunal made its finding based on incorrect information or the information was misstated or misunderstood by it. The third was that the Tribunal failed to comply with its obligations under s 425 of the Act.

6 Section 424A insofar as presently relevant requires the Tribunal to give to the applicant particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Federal Magistrate concluded that the particulars of the first ground did not identify jurisdictional errors. The allegedly non-disclosed "information" related to inconsistencies in the appellant’s evidence and, as has been made plain by the High Court in SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [17]-[18], inconsistencies are not "information" for the purposes of s 424A of the Act. In any event, the evidence which the applicant gave which the Tribunal found to be inconsistent was, as the Federal Magistrate noted, provided at the Tribunal hearing. In consequence, even if it were information, it would fall within the exception provided in s 424A(3)(b).

7 The second ground alleged that the Tribunal made its findings on incorrect information or information it misunderstood and misstated. The particulars of this ground related to the appellant’s claim concerning the Association of which he claimed to be a founding member. The Federal Magistrate’s treatment of this ground was that it was in substance a challenge to a factual finding by the Tribunal and as such was merely an impermissible attempt at merits review. In any event, his Honour observed it was clear that the Tribunal was aware of the claim being put by the appellant, ie that the appellant’s case was that he was a founder of an open association for which registration was unsuccessfully sought; that the activities of the Association were suspended, he being warned not to organise activities for it; and that it was re-activated as an underground organisation holding its meetings in secret because they could not get recognition for it. In the event the Tribunal did not accept that the appellant had founded or was an organiser of the Association or that he was of interest to the authorities for activating an underground association.

8 As to the third ground, s 425 of the Act, insofar as presently relevant, obliged the Tribunal to invite the appellants to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Insofar as this ground suggests that the appellant was not made aware of the issues arising, the Federal Magistrate concluded that the issues identified in the delegate’s decision were made clear to the appellant and formed the subject of the issues at the Tribunal hearing. In consequence, on that basis at least, there was no breach of s 425 of the Act. To the extent that the appellant claims that he was denied a genuine opportunity to give evidence and to present his argument because he was "continually be interrupted by the Tribunal at the hearing and [because the] improper attitude of the Presiding Member of the Tribunal made me become more and more reluctant to make my claims or provide my evidences or present my argument", there was simply no evidence by way of transcript or otherwise that this in fact occurred or any improper attitude was manifest. Accordingly, the claim was rejected on this basis as well.

THE APPEAL

9 The grounds of appeal to this Court are variants upon those that were raised in the review application. The first ground alleged a failure to comply with the requirements of s 424A(1) of the Act. For the reasons given by the Federal Magistrate, with which I agree entirely, no such breach occurred. The appellant appears to have a complete misconception of what s 424A requires of the Tribunal and, accordingly, complains that the Tribunal failed to ensure that he understood the issues arising from the review or particulars from the information in relation to the review. His understanding of the issues appears to raise, if anything, a s 425 issue. His understanding of particulars of the information in relation to the review seems quite unrelated to any statutory obligation imposed by s 424A.

10 The second ground alleges the Tribunal’s failure to comply with its obligations under s 425 of the Act. This is particularised in the following way. It is alleged that the Tribunal led the appellant to believe that he had been well understood, that the Tribunal did not have any further "questions against him" and that the Tribunal would make a favourable decision in his case. He goes on to allege that after the hearing the Tribunal "has completely changed". He says as a result his right to present his arguments against the issue arising from the review had in fact been denied. I had earlier indicated that the matters in issue before the delegate were in issue before the Tribunal and that the matters that were in issue before the Tribunal were put to the appellant at the Tribunal hearing as is made plain in the Tribunal’s reasoning.

11 The above particular was not raised before the Federal Magistrate. It amounts in the circumstances to no more than an expression of disappointment at an adverse decision. It is, moreover, quite inconsistent with the "continually interrupted" and "improper attitude" particular relied upon for s 425 purposes before the Federal Magistrate. There simply is no evidence of a denial of procedural fairness of the type encapsulated in s 425 of the Act.

12 The third ground of appeal alleges that the Federal Magistrate was definitely wrong in finding that the Tribunal had assessed the appellants’ claims "in significant detail". It goes on to allege that the Tribunal did not genuinely understand his claim that he founded an open association and later, after its activities were suspended, he, in effect, founded an underground association. For the reasons given by the Federal Magistrate, I am not satisfied that the alleged misunderstanding existed when one has regard to the Tribunal’s reasons and in particular its exposition of the applicant’s Statutory Declaration and its discussion of this matter in its reasons (at AB 94-96). At best, the appellant is seeking to challenge the correctness of fact findings made by the Tribunal and is inviting me to engage, impermissibly, in merits review. The same can be said of the manner in which he took issue at the hearing of the appeal, with the view the Tribunal took of his being able to leave China on his own passport. Furthermore, it was open to the Federal Magistrate to conclude that the Tribunal assessed the appellants’ claims in significant detail – as it clearly did. The issue of bias was not raised directly in the proceeding below. It is not one that this Court should entertain, the more so as there is no evidence to support the allegation and there is nothing in the decision of the Tribunal which would suggest the possible presence of bias in the Tribunal.

13 The decision of the Federal Magistrate betrays no error. On the contrary, it is unexceptionable. I will order that the appeal be dismissed. The respondent Minister has put on affidavit evidence in conformity with the recently issued Practice Note No 27. The Minister has applied under O 62 r 4(2)(c) for a gross sum order as to costs in the amount of $2,200. I am satisfied this is an appropriate sum in the circumstances and will order that the
appellants pay the first respondent’s costs of the appeal in that sum.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated: 21 February 2008

The Appellant appeared in person.
Counsel for the Respondent:	Ms D Watson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	20 February 2008
Date of Judgment:	21 February 2008