SZMKU v Minister for Immigration and Citizenship [2009] FCA 90 (11 February 2009)

Last Updated: 13 February 2009

FEDERAL COURT OF AUSTRALIA

SZMKU v Minister for Immigration and Citizenship [2009] FCA 90

MIGRATION – no reasonable apprehension of bias in decision of the Refugee Review Tribunal – Tribunal’s disbelief of applicant’s evidence not “information” within s 424A(1) of the Migration Act 1958 (Cth) – meaning of “information” in s 424AA of the Migration Act – no procedural unfairness

Migration Act 1958 (Cth)

Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 referred to
Minister For Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 applied
Re Refugee Review Tribunal; ex parte H [2001] HCA 28; (2001) 179 ALR 425 applied
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 applied
SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 followed

SZMKU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1672/2008

JACOBSON J
11 FEBRUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1672/2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMKU Appellant

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

JUDGE:	JACOBSON J
DATE OF ORDER:	11 FEBRUARY 2009
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.
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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1672/2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMKU Appellant

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

JUDGE:	JACOBSON J
DATE:	11 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal from orders made by Scarlett FM on 2 October 2008 dismissing an application for review of a decision of the Refugee Review Tribunal handed down on 22 May 2008.

DECISION OF THE REFUGEE REVIEW TRIBUNAL

2. The Tribunal affirmed a decision of a delegate not to grant the appellant a protection visa. The appellant is a citizen of the People’s Republic of China. She claimed to have a well-founded fear of persecution on the Convention grounds of imputed political opinion and membership of a particular social group, namely local business people.
3. The appellant’s claims were set out in a statutory declaration to which the Tribunal referred in giving its reasons for the decision. The appellant claimed that she and her husband operated a furniture shop in a province of China. She claimed that the local police used to obtain furniture from the shop and then refuse to pay for it.
4. She claimed that the same thing happened to other businesses in the area, as a result of which a local businessman committed suicide. The appellant said that she took pity on the local businessman’s widow and encouraged her to protest against the corruption. She also claimed that, in mid-2007, she organised a protest of approximately 50 or 60 people. The appellant claimed that the police treated her actions as anti-government activities and arrested her. She said that she was detained, interrogated and tortured.
5. The Tribunal did not accept the appellant as a witness of truth. In coming to this view, it relied upon a number of inconsistencies between the evidence given by the appellant at the oral hearing and what she had said in earlier evidence, either at the hearing or in her statutory declaration. The Tribunal set out the most significant inconsistencies at [65] of its written reasons. The Tribunal also relied on other inconsistencies in coming to the view that it could not accept as factual any of the key substantive claims which the appellant made.

DECISION OF THE FEDERAL MAGISTRATE

6. In her application for review before the Federal Magistrate, the appellant raised three grounds of review. The first was that the Tribunal failed to take into account that she had been nervous and under pressure, and that the Tribunal’s decision was affected by a reasonable apprehension of bias.
7. This ground of review therefore contained two separate parts. The first was her claim that she had been nervous and under pressure. Scarlett FM said at [22] that she had not established that the Tribunal was made aware of any such unusual pressure or nervousness.
8. The second part of this claim was the claim of a reasonable apprehension of bias. Scarlett FM set out the test stated by the High Court in Re Refugee Review Tribunal; ex parte H [2001] HCA 28; (2001) 179 ALR 425. His Honour was of the view that there was nothing in the Tribunal’s reasons or in the evidence which disclosed a reasonable apprehension of bias within the test stated by the High Court.
9. The second ground of review was that the Tribunal failed to comply with its obligations under section 424AA of the Migration Act 1958 (Cth) (“the Act”). His Honour approached the matter upon the basis that the word “information” in section 424AA has the same meaning as it has in section 424A(1).
10. Scarlett FM was of the view that there was no information that would come under the purview of section 424A(1) of the Act and he observed, at [26], that the decision of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] is authority for the proposition that inconsistencies in an applicant’s evidence do not amount to information for the purposes of section 424A.
11. The third ground of review was that the Tribunal made its finding without any substantial ground apart from its assumption. Scarlett FM, at [27], was of the view that this ground could not be maintained because it was an attempt to seek merits review which, of course, is not available in the Federal Magistrates Court.
12. Although it was apparently not raised as a ground of review in her application in the Federal Magistrates Court, Scarlett FM observed, at [29], that the appellant complained about the standard of interpretation in the Refugee Review Tribunal. His Honour rejected that complaint, referring to an authority of the Full Court of the Federal Court in Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230.

THE APPEAL

13. The appellant appeared in person this morning. She was assisted by a Mandarin interpreter. She addressed me orally on the grounds of appeal, which essentially amount to a re-argument of the grounds of review which were rejected by Scarlett FM.
14. As I have already said, the first ground falls into two parts. The appellant expanded very slightly on the first part of this ground this morning. She said that she had been nervous and under what she called “spiritual pressure”. In my view, this ground must be rejected for the reasons given by Scarlett FM in [22] of his reasons.
15. The second aspect of this ground of appeal was also expanded upon this morning. The appellant put to me that the attitude of the Tribunal revealed bias. This was because, the appellant said, the Presiding Member picked faults with her evidence instead of listening to her without interruption. It followed, according to the appellant, that the Tribunal had already decided the case against her.
16. The answer to this submission is to be found in the observations of the High Court in Re Refugee Review Tribunal; ex parte H at [30]. Gleeson CJ, Gaudron and Gummow JJ there said that:

Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously.

17. Their Honours also said at [30] that:

[T]he need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question.

18. There was nothing in the reasons for decision of the Tribunal or in the evidence which revealed the slightest suggestion that the Presiding Member approached the review with a closed mind, see Minister For Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507.
19. The appellant argued the second ground upon the basis of a breach of section 424A of the Act. She was unable to identify precisely what information the Tribunal was required to disclose to her, but the effect of what she said was that the Tribunal ought to have provided her with information about the inconsistencies in her evidence, so as to give her an opportunity to address those inconsistencies.
20. Whether this issue is approached upon the basis of a claimed contravention of section 424A(1) or section 424AA, the result is the same. There is authority for the proposition that “information” in section 424AA has the same meaning as “information” under section 424A: SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 at [27] per Cowdroy J.
21. It is well established that the Tribunal’s disbelief of an applicant’s evidence arising from inconsistencies in it cannot be characterised as constituting “information” within section 424A(1): see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18]. Accordingly, this ground of appeal must also be rejected.
22. The third ground of appeal was said to be unfairness. The appellant claimed that she had been treated unfairly, because the Tribunal described her evidence as “vague”.
23. This is not an accurate description of the Tribunal’s reasons. As I said earlier, it rejected the appellant as a witness of truth. It said, at [70], that its:

...overall impression is that the Applicant has taken a couple of true facts from her past and, possibly with external assistance, ... heavily interlaced them with false information.

24. I see no error in what Scarlett FM said at [27] in rejecting this ground of review as being:

...no more than a claim of a disagreement with a Tribunal’s factual findings.

25. The appellant did not argue before me this morning that she had any complaints about the standard of interpretation before the Tribunal. In any event, it seems to me that this is sufficiently covered by what Scarlett FM said at [29] and following paragraphs of his reasons for judgment.
26. Accordingly, the orders that I will make are that the appeal 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: 11 February 2009

The Appellant was self-represented.
Solicitor for the First Respondent:	T Quinn

Date of Hearing:	11 February 2009
Date of Judgment:	11 February 2009