SZMJI v Minister for Immigration and Citizenship & Anor [2009] FCA 72 (9 February 2009)

Last Updated: 12 February 2009

FEDERAL COURT OF AUSTRALIA

SZMJI v Minister for Immigration and Citizenship & Anor [2009] FCA 72

MIGRATION – no reasonable apprehension of bias or actual bias in decision of Refugee Review Tribunal – no failure to take into account appellant’s claims

Migration Act 1958 (Cth)

Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex Parte H [2001] HCA 28; (2001) 179 ALR 425
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630

SZMJI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1653 of 2008

JACOBSON J
9 FEBRUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1653 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMJI Appellant

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

JUDGE:	JACOBSON J
DATE OF ORDER:	9 FEBRUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.
2. The appellant pay the first respondent’s costs of the appeal fixed to the amount of $2700.
   

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
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1653 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMJI Appellant

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

JUDGE:	JACOBSON J
DATE:	9 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal from the orders of Smith FM made on 3 October 2008 dismissing an application for an order of review of a decision of the Refugee Review Tribunal dated 2 May 2008. The Tribunal’s reasons were handed down on 13 May 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa.
2. The appellant is a citizen of the People’s Republic of China. He arrived in Australia on 18 August 2007 and applied shortly afterward for a protection (Class XA) visa. The appellant’s claims were set out in a statutory declaration made on 26 September 2007.
3. The Tribunal referred to those claims commencing at [18] of its reasons for decision. The Tribunal noted that the appellant worked as a fisherman in a local village in Lianjiang County and that he and other villagers were notified in January 2007 that they could no longer fish close to the shore because the land had been confiscated by the army.
4. The appellant claimed that on 8 May 2007, he and another local fisherman arranged a demonstration of approximately 100 people to demonstrate outside the local government building. The appellant said that he was arrested at the demonstration and detained for a period of about three weeks, during which he was physically and mentally persecuted.

THE HEARING BEFORE THE REFUGEE REVIEW TRIBUNAL

5. The appellant appeared before the Tribunal at a hearing on 27 March 2008. He brought his passport with him and confirmed to the Tribunal that the passport was issued on 17 March 2007 to replace an earlier one which he had lost. The Tribunal took into account in its reasons the fact that the replacement passport was issued approximately two months before the demonstration, rather than having been issued in response to what took place following the demonstration of 8 May 2007.
6. After the oral hearing, the Tribunal wrote to the appellant apparently pursuant to s 424A of the Migration Act 1958 (Cth) providing particulars of information which the Tribunal considered would be the reason or a part of the reason for affirming the decision of the delegate. The appellant responded to the letter in the form of a statutory declaration made 30 April 2008 and received by the Tribunal on 1 May 2008, the effect of which, the Tribunal said in its reasons at [53], was that the appellant claimed to have a well-founded fear of persecution on political grounds.
7. The Tribunal observed that the appellant claimed to be regarded as an anti-government activist because he organised the protest and he claimed to have been detained for that reason. He also claimed that he will be persecuted if he returns to China because he fled from that country and because there is a “black mark” against his name.

THE TRIBUNAL’S REASONS

8. The Tribunal found that in many respects the appellant’s oral evidence was deficient. The Tribunal observed that while he could answer questions about the matters directly referred to in his statutory declaration, his answers to questions about matters which were said to be within his direct experience, but not referred to in his statutory declaration, were vague and lacking in detail.
9. The Tribunal went on to consider whether there might be particular circumstances which could have affected the appellant’s ability to give evidence and to provide a credible account of the events leading to his departure from China. However, the Tribunal was not satisfied that there was a satisfactory explanation for this deficiency in the appellant’s evidence. The substance of the Tribunal’s reasons is set out in [60]:

In the circumstances, I am of the view that the applicant was familiar with the claims set out in the statement that was prepared for him by his adviser, because he had learned them, but was unable to provide convincing answers about matters not included in the statement because many of the claims are not true. If the applicant had really been involved in organising a demonstration; had he really been arrested and detained, I would expect that he would be able to readily provide the details sought from him at the hearing in relation to those matters. Given his inability to do so, and his apparent evasiveness when questioned about these issues, I consider that the applicant was not telling the truth about these events. I do not accept that the applicant was involved in organising a protest as he claims. I do not accept that he was detained as a result. I do not accept that the [sic] continued to be harassed, and of adverse interest to the authorities prior to his departure from China in August 2007.

10. The Tribunal took into account other matters in rejecting the appellant’s claims. It considered his evidence about the departure arrangements from China to be unsatisfactory. It found, at [62], that the appellant travelled to Australia using a passport issued in March 2007. It observed, at [62], that passports are quite costly and that a person in the financial position of the appellant would not obtain a passport if he did not intend to travel overseas. The Tribunal went on to say:

As the passport was issued before the applicant’s claimed difficulties with the authorities, I am satisfied that prior to these claimed difficulties, he had formed the intention to travel overseas, and that he had the means to do so, legally, with his passport.

11. The second additional matter which the Tribunal took into account was that it found the appellant’s evidence about the assistance provided to him by a friend in making departure arrangements to be inconsistent, implausible and not credible. The Tribunal accepted that a friend had helped the appellant to obtain a visa to Australia and provided false information to the Department of Immigration and Citizenship with or without the appellant’s knowledge, but the Tribunal found that any difficulty that the appellant may have faced in obtaining a visa to travel to Australia had nothing to do with the Chinese authorities.
12. The Tribunal was not satisfied with the appellant’s explanation of these arrangements, and said that it would expect him to be able to provide a coherent and sensible account of his actions and motivations. The Tribunal considered the appellant’s evidence on this point to be evasive and took into account his “unhelpful demeanour” when he was questioned about that issue: [65]. Accordingly, the Tribunal did not accept that the appellant was involved in protest activity as he claimed or that he had been arrested and detained. The Tribunal did not accept that the appellant had a “black mark” against his name or any profile that would result in a real chance of his persecution on return to China.

THE DECISION OF THE FEDERAL MAGISTRATE

13. The appellant relied on three grounds of review before the Federal Magistrate. The first ground may be described as a reasonable apprehension of bias on the part of the Tribunal. The particulars of the ground of bias were the Tribunal’s reasoning in relation to the cost of obtaining a passport and the consequences which flowed from that in the Tribunal’s reasoning.
14. The second ground of the application characterised the same reasoning as revealing bias and an incorrect finding. The learned Federal Magistrate, at [16] of his reasons, said that he was not persuaded that it was not open to the Tribunal to form the conclusion that it did on this issue. He was not persuaded that the Tribunal’s refusal to accept the appellant’s explanation was not open to it or that it showed unreasonableness or irrationality within the principles stated in the well known authorities.
15. The third ground of review challenged the Tribunal’s reasons in not accepting the appellant’s explanation for those parts of his evidence which were found to be vague and lacking in detail. The learned Federal Magistrate was of the view that these criticisms did not reveal any jurisdictional error by the Tribunal.

THE APPEAL

16. The notice of appeal states two grounds. The first is that the Federal Magistrate erred in law. The second is that the Federal Magistrate was wrong in finding that the Refugee Review Tribunal acted properly in making its findings. The substance of these complaints is set out in three particulars. The first refers to a reasonable apprehension of bias. The second is that the Federal Magistrate was wrong not to find that the Tribunal failed to properly consider the appellant’s application. The third particular is that there was “no evidence” that the Tribunal considered the explanations given by the appellant in response to the s 424A letter.
17. The appellant appeared before me in person this morning. He was assisted by a Mandarin interpreter. He said that the main point he wanted to make was that the Tribunal’s decision was biased against him because it was based upon a prior assumption which the Tribunal was not entitled to make.
18. As to the claim of bias, I am satisfied that there is no foundation for this claim. It is true that the learned Federal Magistrate did not refer to the principles in relation to reasonable apprehension of bias stated in authorities, such as Re Refugee Review Tribunal; Ex Parte H [2001] HCA 28; (2001) 179 ALR 425 at [27] – [32], nor did the learned Federal Magistrate refer to the principles in relation to actual bias stated in authorities such as Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507.
19. However, it is plain that the Federal Magistrate was of the view that the claim of bias was made upon the footing that the Tribunal made a wrong finding of fact in relation to the appellant’s explanation about the renewal of his passport. I see no error in the Federal Magistrate’s conclusion that the findings of fact were open to the Tribunal on that issue. His view that this finding revealed no irrationality or unreasonableness was sufficient to dispose of the claim of bias, whether treated as a claim of reasonable apprehension of bias or actual bias. It follows in my view that the ground of appeal based on bias must be rejected.
20. I should add that there was nothing in the reasons of the Tribunal to suggest that it approached the matter with a closed mind. Also, it seems to me that the learned Federal Magistrate did turn his mind to the issue of bias in what he said at [14] – [16] of his reasons of judgment. As I have said, I see no error in the conclusion that he reached. Moreover, I do not consider that there is any substance in the claim made by the appellant that the Tribunal made an assumption which was not open to it.
21. The Tribunal may, in a general sense, be said to have made an assumption about the effect of the appellant’s admitted possession of a passport issued in March 2007, some two months before the demonstration. However, in my view, this is covered by what the Federal Magistrate said in his reasons, namely that this was a finding of fact which was open to the Tribunal and that it revealed no irrationality or unreasonableness. It cannot be said that the Tribunal failed to take into account an integer of the appellant’s claims in accordance with the principles stated in authorities such as the reasons of Allsop J in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244.
22. Nor do I consider that there was any substance in the claim that the Tribunal failed to consider the appellant’s claims made in his statutory declaration in response to the Tribunal’s s 424A letter. The Tribunal’s reasons set out at [53] the substance of the statutory declaration and there are a number of references in the Tribunal’s reasons to the fact that it took into account the content of the statutory declaration of April 2008. It is true that the Tribunal did not refer in its reasons to every one of the 12 paragraphs of the statutory declaration of 30 April 2008. However, in my view it is sufficiently clear that the Tribunal’s reasons disclose a consideration of each of the grounds in the appellant’s application. As a Full Court said in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [46], it is not necessary for a tribunal to refer to every piece of evidence and every contention made by an applicant in the Tribunal’s written reasons (French, Sackville and Hely JJ).
23. Their Honours went on at [46] to observe that there was a distinction between the tribunal failing to advert to evidence in its written reasons, and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason.
24. As I have already said, it seems to me that the reasons of the Federal Magistrate revealed a consideration of the grounds in the application for review and I am also of the view that the Tribunal’s reasons for decision indicate that it considered all of the matters that formed the basis of the appellant’s claim to have a well-founded fear of persecution.
25. Accordingly, I am satisfied that the appellant has failed to identify any error in the decision or reasoning of the Federal Magistrate or any jurisdictional error on the part of the Tribunal.
26. The appeal should be dismissed with costs.
    

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson J.

Associate:

Dated: 9 February 2009

The Appellant was self represented
Solicitor for the First Respondent:	Sparke Helmore

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