SZMCF v Minister for Immigration and Citizenship [2008] FCA 1659 (11 November 2008)

Last Updated: 12 November 2008

FEDERAL COURT OF AUSTRALIA

SZMCF v Minister for Immigration and Citizenship [2008] FCA 1659

Migration Act 1958 (Cth) s 424A

SZMCF v Minister for Immigration and Citizenship [2008] FMCA 939 cited


























SZMCF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1183 OF 2008

TRACEY J
11 NOVEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1183 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMCF Appellant

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

JUDGE:	TRACEY J
DATE OF ORDER:	11 NOVEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

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 1183 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMCF Appellant

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

JUDGE:	TRACEY J
DATE:	11 NOVEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal against a judgment of a Federal Magistrate delivered on 8 July 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 4 March 2008: see SZMCF v Minister for Immigration and Citizenship [2008] FMCA 939. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

BACKGROUND

2 The appellant is a citizen of the People’s Republic of China. The appellant entered Australia on 30 January 2007 on a tourist visa. On 9 February 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs as it was then known. A delegate of the first respondent refused the application for a protection visa on 30 April 2007. On 31 May 2007 the appellant applied to the Tribunal for a review of that decision.

3 The appellant claimed that he used to run a successful restaurant with a close friend, Mr Min Yun Cao, but in October 2005 the restaurant was closed down and his friend was arrested after an argument between his friend and some Public Security Bureau ("PSB") officials. The appellant paid a bribe to have his friend released in December 2005. He went into debt because he was forced to borrow money to pay the bribe.

4 The appellant stated that, in order to earn money, they went to work in a coal mine in July 2006. On 26 November 2006, there was an explosion in the coal mine, resulting in the death of 8 people and the injury of others. The appellant was employed at in the mine at the time but was not working when the explosion occurred. He was not paid as most of the owners fled. In December 2006 he and Mr Cao organised coal miners to approach various government agencies, to ask them to investigate and take action against corrupt officials and the coal mine owners, to provide compensation to the victims of the explosion and to pay the money owed to the workers. On 22 December 2006 the appellant and Mr Cao organised about 200 coal miners to attend a protest in front of a government building, but the protest was quickly suppressed by armed police and more than 20 people, including the appellant, were arrested.

5 The appellant claimed that he was subjected to torture whilst in detention, and forced to write a statement promising not to make any more trouble for the government. He was released on 31 December 2006, but was regarded as a political dissident and had to report to the local police station weekly and was often questioned by the police. Mr Cao, who was not arrested during the demonstration, went to Beijing. The appellant managed to travel to Beijing in late January 2007 and, with the help of Mr Cao, who had arranged for him to leave the country as part of a tour group, was able to leave China.

6 On 31 January 2008, following the hearing at the Tribunal, the appellant was sent a letter, pursuant to s 424A of the Migration Act 1958 (Cth), which invited him to comment on various inconsistencies in his evidence including:

• discrepancies between his version of the explosion at the coal mine and information reported in the China (PRC) national newspaper;

• the appellant’s claim that he was forced to hide his passport from authorities, yet used the same passport to exit China unhindered by border control authorities; and

• the appellant’s claim that his wife bribed officials to delete his adverse PSB history from official records but that, despite this, the appellant claimed that the police were "right now looking for [him]".

REFUGEE REVIEW TRIBUNAL

7 The Tribunal found that the appellant was an unreliable witness with poor credibility. It further found that the appellant’s claims regarding his opinions and activities in China were fabricated to support his claim to be a refugee. The Tribunal did not accept the appellant's version of events leading up to his departure from China. It noted, based on independent reports of the incident, that the appellant’s evidence relating to the mine disaster contained a fundamental error which was significant enough for the Tribunal to be unpersuaded that he was ever a miner. The Tribunal also found that, based on independent country information, the appellant’s explanation of his exit from China was implausible and illogical as he claimed to be of adverse interest to the Chinese authorities and yet was able freely to leave China on his own passport.

8 The Tribunal did not accept that the appellant held anti-government opinions that he would seek to express on his return China, and found that he was not wanted by authorities in China at the time of his departure and that he would not be persecuted as a political dissident if he was to return.

FEDERAL MAGISTRATES COURT

9 On 28 March 2008 the appellant filed an application for judicial review of the Tribunal’s decision in the Federal Magistrates Court. The appellant claimed that the Tribunal’s decision "has included" a reasonable apprehension of bias, the Tribunal made its finding based on incorrect information, the evidence of the appellant was misstated by the Tribunal, the Tribunal’s finding was contradictory, the Tribunal failed to consider the appellant’s evidence fairly and the Tribunal incorrectly assessed the appellant’s credibility.

10 The Federal Magistrate found that the grounds put forward by the appellant took issue with the Tribunal's reasoning. The Federal Magistrate found nothing in the Tribunal decision to support the allegation of a reasonable apprehension of bias. The Federal Magistrate noted that "the Tribunal had fundamental credibility concerns about the [appellant's] claims and the Tribunal expressed these both at the hearing and in an invitation to comment sent pursuant to s.424A of the Migration Act 1958 (Cth)". The Federal Magistrate found nothing in the Tribunal’s decision or in the record of the Tribunal’s process to support the allegation of a reasonable apprehension of bias.

11 The Federal Magistrate found no legal error in the Tribunal’s examination of the timing of the explosion at a mine, or in its approach to assessing whether a person in the appellant’s claimed position would encounter difficulty leaving China. There was no error in the Tribunal preferring the independent country information to the evidence of the appellant. The Federal Magistrate rejected the grounds in the application to the extent that they amounted to complaints about factual findings. The Federal Magistrate understood the appellant to be asserting that the Tribunal was in error in treating the appellant’s response to the s 424A invitation as raising a new ground.

12 The Federal Magistrate concluded that the appellant failed to demonstrate any jurisdictional error in the Tribunal’s decision and dismissed the application.

APPEAL TO THIS COURT

13 The notice of appeal to this court was filed on 29 July 2008. The notice of appeal contained six grounds. The first ground read: "The Federal Magistrates (sic) erred in finding that the Refugee Review Tribunal ("the Tribunal") has made its decision properly and fairly."

14 The second ground read: "The Tribunal’s decision has included a reasonable apprehension of bias while it has made a finding in relation to my credibility. In particulars, the Tribunal failed to consider impartially and properly my further evidences in my response to the Tribunal’s invitation under s.424A(1) of the Act."

15 The third ground read: "The Tribunal made its finding based on completely incorrect information; and my evidences have completely been misstated by it. In particulars, I have never given the information that I am a dissidents on wanted lists. But, the Tribunal still made its finding based on the information that a person, who is on wanted list, would not be able to leave China on a passport in his own name."

16 The fourth ground read: "The Tribunal’s finding was contradictory. In particulars , on one hand the Tribunal has stated that The Tribunal is aware from reliable country information that bribery is commonplace in China (PRC) though frowned on officially. But, on the other hand, the Tribunal has in fact believed that the Chinese government system is lawless, airtight and unquestionable. So it is impossible for me or my wife or my friend to get me out of the country through bribery."

17 The fifth ground read: "The Tribunal failed to consider my evidences fairly. In particulars, it is definitely not the case that I raised the new claim in relation to my departure through bribery."

18 The sixth ground read: "The Tribunal assessed my credibility incorrectly. Based on the evidences above, I have to say that the Tribunal assessed my credibility incorrectly. As a matter of fact, I am a truthful witness."

19 Grounds 2-6 were in substantially the same terms as those relied on in the Federal Magistrates Court.

20 The applicant appeared in person at the hearing of his appeal. He had the assistance of an interpreter.

21 When asked to identify the conduct of the Tribunal which he said gave rise to an apprehension of bias, the appellant responded that the Tribunal had not believed his evidence relating to the mine explosion and the circumstances in which he was able to depart from China. He said that the "completely incorrect information" to which he referred in ground three was the same information which had given rise to the apprehension of bias. He also objected that the Tribunal’s reasons were contradictory for the reasons stated in ground four.

22 All of the appeal grounds lack substance. Most of them involve an attack on the Tribunal’s findings of fact. The allegation of bias amounts to no more than a complaint that the Tribunal failed to accept the appellant’s evidence on two important matters. No jurisdictional error on the part of the Tribunal has been established. Nor has any error on the part of the Federal Magistrate been identified.

23 The appeal must be dismissed with costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated: 11 November 2008

	The Appellant was self represented
Counsel for the First Respondent:	Mr A Markus (Solicitor)
Solicitor for the Respondents:	Australian Government Solicitor

Date of Hearing:	11 November 2008
Date of Judgment:	11 November 2008