SZMLC v Minister for Immigration and Citizenship [2009] FCA 65 (9 February 2009)

Last Updated: 10 February 2009

FEDERAL COURT OF AUSTRALIA

SZMLC v Minister for Immigration and Citizenship [2009] FCA 65

SZMLC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1756 of 2008

COLLIER J
9 FEBRUARY 2009
BRISBANE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD 1756 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMLC Appellant

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

JUDGE:	COLLIER J
DATE OF ORDER:	9 FEBRUARY 2009
WHERE MADE:	BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.
2. The appellant pay the first respondent’s costs, fixed in the sum of $2,100.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD 1756 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMLC Appellant

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

JUDGE:	COLLIER J
DATE:	9 FEBRUARY 2009
PLACE:	BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of Smith FM of 24 October 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 27 May 2008. 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.
2. This morning there was no appearance by the appellant. I asked the Court Officer to call the matter outside Court but there was no response from the appellant. Ms Rayment for the Minister applied for the matter to be dismissed pursuant to s 25(2B)(bb)(ii) Federal Court of Australia Act 1976 (Cth), and tendered a copy of a letter from her firm to the appellant dated 27 January 2009 in which the appellant was informed that, if he did not appear at Court for the hearing, the Minister would apply for the matter to be dismissed with costs.
3. I adjourned the hearing during which time my associate with the assistance of the interpreter Ms Wang rang the appellant at the contact telephone number in the Court file.
4. My associate informed me that she spoke with the appellant with the assistance of the interpreter, and that the appellant said in summary:
   • he was unaware he had to be in Court today;
   • previously his lawyer had always contacted him of any matters;
   • he received a letter in late January but could not read it;
   • he cannot understand English.
5. Clearly it is unfortunate that the appellant was not in Court this morning for the hearing. However, notwithstanding the failure of the appellant to appear and the reasons given my associate this morning, in view of the nature of this case I consider that I am in a position to deliver judgment on the material before me.

BACKGROUND

6. The appellant is a citizen of China who arrived in Australia on 26 October 2007. On 7 December 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 10 January 2008. On 8 February 2008 the appellant applied to the Tribunal for a review of that decision.
7. Before the Tribunal, the appellant claimed to fear persecution in China in connection with a land dispute. The farm of the appellant’s father was allegedly expropriated by the authorities in 2006. The appellant stated that his father “started leading some of farmers” but was arrested and severely beaten in 2007, while others were injured and killed. According to the appellant, he then became associated with Ms H, a reporter, and took her to meet some of victims. Ms H was later arrested by the Public Security Bureau (PSB) in July 2007. The appellant claimed that between June and October 2007 he produced petitions demanding Ms H’s release and protesting against the land expropriations. He stated that “the authorities gave me more and more troubles from September 2007”, that he was interrogated on seven separate occasions, and was identified as the leader of the dissident petitioners. He further claimed that after his departure from China, three of his fellow petitioners and his father were arrested.

THE TRIBUNAL DECISION

8. The Tribunal did not accept that the appellant was a “reliable, credible or truthful witness”. The Tribunal noted a number of issues which supported this conclusion. They included the perceived implausibility of his claim that he had visited Ms H in prison; the lack of any records of a Ms H or someone with a similar name in relevant websites searched by the Tribunal; problems with various aspects of his claim that he had been interrogated; and his ability to leave China on a passport entered in his own name. As a consequence, the Tribunal did not accept the key claims on which the appellant’s claims depended. It was not satisfied that the appellant had a subjective fear of persecution, and as a consequence rejected his claim for a protection visa.

THE FEDERAL MAGISTRATE’S DECSION

9. Before the Federal Magistrate the appellant relied on three grounds of review. These were accompanied by extensive particulars described as being set out in an “argumentative fashion”. The essence of the appellant’s submissions before the Federal Magistrate was that the Tribunal had demonstrated bias in its treatment of the appellant’s claims and had failed to assess his evidence genuinely, correctly or reasonably.
10. The Federal Magistrate found that the Tribunal had approached the appellant’s claims in a logical manner, and that the Tribunal had approached the appellant’s claims with a genuine and rational attempt to assess the credibility of the applicant’s uncorroborated history. His Honour was also of the view that many of the contentions raised by the appellant cavilled with the merits of the Tribunal’s findings. Addressing specific issues raised by the appellant, his Honour found that there was nothing irrational in the Tribunal rejecting the appellant’s explanations regarding how he had contacted Ms H when it had already found other aspects of his claims implausible. Similarly, it was open to the Tribunal to find that the appellant had tailored some of his explanations provided in response to the Tribunal’s invitation to comment to fit its particular concerns. Noting the test in Re Refugee Review Tribunal & Anor; Ex parte H [2001] HCA 28; (2001) 179 ALR 425, his Honour also rejected the appellant’s allegations of bias on the part of the Tribunal.
11. As his Honour was unable to discern jurisdictional error on the part of the Tribunal, the application for judicial review was dismissed.

THE GROUNDS OF THE PRESENT APPEAL

12. The notice of appeal contains two grounds with four accompanying particulars. The grounds of appeal are as follows:

1. The Federal Magistrates Court erred in law.

2. The Federal Magistrates Court was wrong in finding that the Refugee Review Tribunal (the Tribunal) acted properly in its findings.
   

Particulars:

1. His Honour failed to consider, properly and correctly, that there is a jurisdictional error in the Tribunal’s decision.
   
2. His Honour failed to consider that the Tribunal did not bring an independent and fair mind to look at my evidence; and the Tribunal did not bring an independent and fair mind to look at my evidence; and the Tribunal assessed my credibility incorrectly and unfairly.
   
3. His Honour failed to consider that the Tribunal made its finding with apprehensive (sic) bias.
   
4. His Honour failed to consider that the Tribunal made its finding simply based on its assumption and the Tribunal did so, again, with apprehensive (sic) bias.
   
13. The orders sought by the appellant were:

1. That the decision be set aside.

2. The matter be remitted to the differently constituted Refugee Review Tribunal for determination accordance (sic) with the law.
   

3. An order that the respondent pay the costs of this application.

4. Such further or other order as the Court sees fit.

14. Written submissions of the Minister can be summarised as follows:
    • it is difficult to ascertain the relationship between the grounds of appeal and the particulars;
    • the particulars seek to reiterate on appeal the grounds argued before the Federal Magistrate;
    • in the absence of any particulars the two grounds of appeal are meaningless and cannot succeed.
    • in relation to the four sets of particulars:
      • as to the first set – the appellant has not identified any proper basis for the contention;
      • as to the second set – to the extent that the appellant seeks to re-argue a complaint which was originally before the Federal Magistrate, it cannot succeed for the reasons given by the Federal Magistrate;
      • as to the third and fourth sets – they are meaningless; and in any event complaints of bias in the Tribunal were raised before the Federal Magistrate who properly dismissed them as being without foundation;
    • the Tribunal’s decision fundamentally turns on its view of the applicant’s credibility and findings of fact of this nature are not matters which fall within the scope of the Court’s review of the Tribunal’s decision.

CONSIDERATION

15. In my opinion, the grounds of appeal relied on by the appellant cannot be substantiated, principally for the reasons submitted in writing by the Minister. In particular:
    • I do not accept that the Federal Magistrate erred in law;
    • there is no basis for the claim that the Federal Magistrate erred in finding that the Tribunal acted properly in its findings;
    • it is clear that his Honour did consider, properly and correctly, the issue of whether the decision of the Tribunal was characterised by jurisdictional error. This is clear from an analysis of the decision of his Honour, in particular [18]-[29];
    • his Honour did consider the issue of bias in the Tribunal, which in my view is the essence of the second, third and fourth sets of particulars in the Notice of Appeal, however his Honour found there was no evidence of bias. In relation to this point I note that a finding by the Tribunal against the appellant on the facts is not only not bias from the perspective of the Tribunal, but it is a legitimate exercise in decision-making by the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259.
16. In my view the appeal should be dismissed with costs.
    

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated: 9 February 2009

Counsel for the Appellant:	The Appellant did not appear
Solicitor for the Respondents:	Ms Bernadette Rayment of Sparke Helmore

Date of Hearing:	9 February 2009
Date of Judgment:	9 February 2009