SZKRR v Minister for Immigration & Citizenship [2008] FCA 145 (21 February 2008)

Last Updated: 26 February 2008

FEDERAL COURT OF AUSTRALIA

SZKRR v Minister for Immigration & Citizenship [2008] FCA 145

Minister for Immigration & Multicultural & Indigenous Affairs v Katisat [2005] FCA 1908 cited
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 cited
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 followed
SZKRR v Minister for Immigration & Anor [2007] FMCA 1709 considered






























SZKRR v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2078 OF 2007

BENNETT J
21 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2078 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

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

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant is to pay the first respondent’s costs in the sum of $3,451.75.

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 2078 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

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

REASONS FOR JUDGMENT

INTRODUCTION

1 The appellant arrived in Australia from China on 3 September 2006 and applied for a Protection (Class XA) visa (‘protection visa’). She claimed that she feared persecution by Chinese authorities due to her ongoing agitation for compensation after her husband was seriously injured in a motorcycle accident caused by the alleged negligence of a Chinese state-owned engineering team. A delegate of the Minister refused her application for a protection visa and the Tribunal affirmed that decision.

APPEAL TO THE FEDERAL MAGISTRATES COURT

2 The appellant appealed to the Federal Magistrates Court. In her application she asserted that:
(a) there was an error of law in the Tribunal’s decision constituting a jurisdictional error; and

(b) there was procedural error in the Tribunal’s decision constituting an absence of natural justice.

In essence, the appellant asserted that the Tribunal ignored or failed to consider a claim, ignored relevant evidence and misstated or misunderstood her claim or made a mistake in relation to an important fact.

3 Federal Magistrate Scarlett concluded that there was no evidence of bias on the part of the Tribunal (SZKRR v Minister for Immigration & Anor [2007] FMCA 1709 at [41]). The allegation of bias was based upon the fact that the Tribunal said that the appellant’s documents were false when she said they were true. His Honour rightly rejected that claim. His Honour also found that the appellant had not shown any jurisdictional error (at [42]). His Honour read through the decision himself and was unable to discern any jurisdictional error. He dismissed the application.

THE CURRENT APPEAL

4 In her notice of appeal, the appellant asserts that his Honour erred in law and that he was wrong in finding that the Tribunal acted properly in its findings. The particulars to those grounds assert that the Tribunal failed to consider documentary evidence, failed to make a genuine attempt to assess the appellant’s claims and made its finding based, ‘on nothing but its assumption’. Further, the appellant asserts that the Tribunal ignored claims and evidence, misstated or misunderstood the claim, or made a mistake in relation to an important finding of fact.

5 In a written submission filed in support of the appeal, the appellant submits that the Tribunal did not make ‘a genuine attempt to look at my important documentary evidences nor considered my important evidences’. The appellant then refers to a number of factual matters in relation to her husband’s accident and what occurred after that, the medical certificates she provided in support of that event and various other factual matters. These address the same subject matter considered by the Tribunal.

6 The only matter raised in the appeal that goes to the question of procedural fairness or bias was raised by the appellant in her oral submissions on the appeal, where the appellant appeared in person assisted by an interpreter. She submits that the Tribunal acted unfairly in not believing what she had put to it and that it was not fair that the Tribunal did not take into account the subsequent documentary evidence that she had submitted to it. However, each document that had been submitted by the appellant to the Department or subsequently to the Tribunal was specifically referred to in the Tribunal’s decision. Further, the Tribunal’s finding with respect to the medical certificate originally submitted by the appellant was just one part of the overall adverse credibility finding. That finding featured prominently in the Tribunal’s reasons for its decision to place no weight on the subsequent documents submitted by the appellant which sought to support the original medical certificate.

7 The Tribunal did not find that the additional documents submitted by the appellant after the hearing were fraudulent. It said that, because it found the appellant lacking in credibility, it was unable to place weight on the further statements and documentation that she provided regarding her husband’s accident and subsequent treatment. The Tribunal made a comprehensive finding about the appellant’s credibility. It stated, with some care, the basis for that finding based upon a series of factual matters and it explained its reasons in each case. It then found that considering the evidence cumulatively, it did not accept the appellant’s claims. Having made that prior finding on credibility, the Tribunal was entitled to place no weight on evidence purportedly corroborative of the appellant’s case (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [12] per Gleeson CJ and [49] per McHugh & Gummow JJ).

8 The appellant asserted that the Tribunal was obliged to contact the persons who had signed the additional documents that she provided. She submits that the Tribunal should have investigated the matter further. The Tribunal was not obliged to do so. It was for the appellant to present her case. The Tribunal was under no duty to summons the authors of the documents or to inquire into their evidence (Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ; Minister for Immigration & Multicultural & Indigenous Affairs v Katisat [2005] FCA 1908 at [38]- [67] per Bennett J). In any event, the Tribunal simply placed no weight on the documents because of its prior finding on credibility and those documents were not, in any event, central to the decision of the Tribunal.

9 All other matters raised by the appellant relate to the Tribunal’s findings of fact which are matters for the Tribunal. The Tribunal’s conclusions, which were well supported in its reasons, were open to it on the evidence before it.

10 The Tribunal fully addressed the various aspects of the appellant’s claims. I see no basis to support the appellant’s assertion that the Tribunal failed to make a genuine attempt to assess her claims. I accept the Minister’s submission that the Tribunal decision represents a meaningful and thorough consideration of the evidence and that the appellant was given ample opportunity to present her case thoroughly and to address all of the Tribunal’s concerns regarding her credibility.

CONCLUSION

11 It follows that the appellant has not established jurisdictional error on the part of the Tribunal nor error on the part of the Federal Magistrate. The appeal must be dismissed. I am satisfied as to the basis for the quantum of costs sought by the Minister. The appellant is to pay the first respondent’s costs in a sum of $3,451.75.

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

Associate:

Dated: 25 February 2008

The Appellant was self represented.
Counsel for the Respondent:	S Siva
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	21 February 2008
Date of Judgment:	21 February 2008