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Federal Court of Australia |
Last Updated: 22 February 2008
FEDERAL COURT OF AUSTRALIA
SZJXF v Minister for Immigration & Citizenship [2008] FCA 137
SZJXF
v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW
TRIBUNAL
No NSD 2012 of
2007
FINN J
22 FEBRUARY
2008
SYDNEY
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AND:
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THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The
appellant pay the first respondent’s costs of the appeal.
Note: Settlement and entry of
orders is dealt with in Order 36 of the Federal Court Rules.
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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BETWEEN:
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SZJXF
Appellant |
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AND:
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MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent |
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JUDGE:
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FINN J
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DATE:
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22 FEBRUARY 2008
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
1 This is an appeal from a decision of a Federal Magistrate dismissing an application for an order of review of a decision of the Refugee Review Tribunal refusing the grant of a protection visa to the appellant.
THE CLAIMED FEAR AND THE TRIBUNAL’S DECISION
2 The general character of the claims made for a protection visa is revealed in the statutory declaration which accompanied the appellant’s visa application. The appellant is a Chinese national. In the declaration it is stated (to use the Tribunal’s précis) that:
"... since July 1983 he has worked in a tyre repairs workshop, ‘Old Zhong Tyre Repairs Shop’ in Honglu St., Honglu Town, Fuqing City, which was opened by his father on 4 March 1980. In August 2003 the applicant’s father retired and transferred the tyre repairs shop to the applicant. At that time, there were 6 employees and the applicant was the manager. In January 2004, 2 officials from Honglu Town local government visited the shop and suggested that the applicant move the shop, as the local government had allocated the land to Mr Xing Jian Zhang, a supporter of Mr Qing Lin Jia who was the Mayor of Beijing from 1996 after having been the President of Fujian Province. The applicant’s father did not allow him to move the shop. On 8 March 2004 Mr Qiao Hua Zhang, the nephew of Mr Xing Jian Zhang, and about 20 people including police broke into the shop and destroyed everything. They also assaulted the applicant and all employees. The applicant was hospitalised for 2 months and his left hand was seriously injured. The applicant lost everything. His father was very upset and made many enquiries of the police. On 30 April 2004 the applicant’s father was arrested and put into a detention centre while the applicant was still in hospital. The applicant returned home around 10 May 2004 and spent all his savings to save his father who was released from the detention centre on 30 September 2004. Because of his left hand injury the applicant could not obtain work and he took legal action against Mr Qiao Hua Zhang and Mr Xing Jian Zhang. On 1 July 2005 the applicant, his wife, parents, 2 children and about 20 relatives had a sit in protest in front of Mr Xing Jian Zhang’s house. On that evening the applicant was taken by police in an ambulance to a mental hospital in Fuzhou where he was held until Chinese New Year. After his release he was continually threatened and warned by the police and eventually a friend arranged the money for the applicant to go overseas."
3 Because one of the grounds of challenge to the Tribunal’s decision alleges a breach of s 425 of the Migration Act 1958 (Cth) I should note in passing that the Minister’s delegate refused the application because he found the appellant’s claims to be general and unsubstantiated; that the evidence lacked details on a number of matters; that no documentary evidence had been provided; that his actions and behaviour were inconsistent with those reasonably to be expected of a person who was being continually threatened and who held a genuine fear for his life or safety; and that his ability to legally depart China on his own passport suggested he was not of significant adverse interest to authorities. The Tribunal dismissed the appellant’s application to it for reasons which were largely similar to those of the delegate. As the Federal Magistrate indicated (at [3]-[4] of his decision), the Tribunal noted there was no supporting evidence for the appellant’s claims; it did not believe the appellant’s narrative provided at the Tribunal hearing; and it pointed to vagueness in his evidence and to aspects of the history which it regarded as implausible.
THE JUDICIAL REVIEW APPLICATION
4 The application in form raised three grounds involving non-compliance first with the provisions of s 424A(1) of the Act; secondly, with the obligations imposed under s 420 of the Act; and, thirdly, with s 425 of the Act. The Federal Magistrate prefaced his consideration of the grounds of review with the observation that while other Tribunal members might have arrived at different conclusions, he was not satisfied that the present Tribunal did not make a genuine attempt to assess the truth of the appellant’s claim or that its decision was not open to it on the evidence. His Honour went on to indicate that it was not a function of the Court itself to decide whether the applicant should be believed.
5 The appellant’s s 424A(1) ground identified elements in the Tribunal’s reasons for its not being satisfied by the appellant’s narrative, these relating variously to gaps in the evidence, assessments of his evidence, and the appellant’s ignorance of matters he might reasonably be expected to have found out about. His complaint is that these points were not put to him in writing with an invitation for written comments. The Federal Magistrate correctly concluded that the s 424A ground misconceived the duties of the Tribunal. The section does not require the Tribunal’s reasoning, its assessment of an applicant’s evidence or its identification of inconsistencies or inadequacies in the evidence to be put to the applicant. The Federal Magistrate went on to indicate that he was not persuaded that there was any unfairness to the appellant by reason of the Tribunal not being persuaded by his narrative. Contrary to the submissions of the appellant, the appellant had been put on clear notice that his claims might be disbelieved particularly in the absence of any supporting evidence. These latter comments, I would note, appear to be directed as much to demonstrating no breach of s 425, as they are to s 424A: see SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152.
6 The second ground appears to rely on the obligation imposed by s 420(2)(b) that the Tribunal is required to act "according to substantial justice and the merits of the case". That provision, as his Honour correctly held, does not give rise to an independent obligation of a procedural nature: Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611. Moreover, the Federal Magistrate was not persuaded that the Tribunal failed to make a genuine attempt to assess the merits of the case presented by the appellant.
7 The third ground alleging a failure to comply with s 425 takes the form of an allegation that the appellant was denied his right to give his oral evidence properly; he was interrupted on many occasions; and he was not given sufficient time. No evidence to establish these contentions was presented to his Honour notwithstanding the appellant had been advised at a directions hearing by his Honour to present a transcript if it was relevant to a ground of review. The Federal Magistrate was not persuaded by the material before him that the appellant was denied the opportunity required by s 425.
THE APPEAL
8 The three grounds of appeal to this Court allege the same failures to comply with the statutory obligations raised in the application to the Federal Magistrate.
9 At the hearing of the appeal, the appellant’s oral submissions, while not tied to particular grounds of appeal as such (save in relation to s 420), challenged the Tribunal’s reasoning in a number of respects, took issue with conclusions, or else raised new evidentiary issues which had not been raised before the Tribunal or the Federal Magistrate. These submissions did not advance his case in that in one guise or another they either challenged the credibility finding or else invited impermissible merits review albeit, in some instances, on bases not put to the Tribunal.
10 Section 424A for present purposes requires the Tribunal to provide an applicant with particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review. It is now well accepted that "information" for this purpose does not encompass the Tribunal’s subjective appraisals, thought processes or determinations, nor does it extend to identified gaps, defects or lack of detail or specificity in evidence, or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps etc: see generally SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [18]. There is nothing in the material presented to this Court to suggest that the complaint of the appellant was anything other than the taking of objection to the Tribunal’s reasoning and its assessment of his evidence. The nondisclosure of those matters does not enliven the s 424A(1) obligation.
11 I can see no basis at all for an alleged non-compliance with s 425. That section insofar as presently relevant requires the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. There could be no doubt in the appellant’s mind as to what the issues were that arose in relation to the decision under review, being those raised by the delegate and replicated in the Tribunal’s decision: see SZBEL. To the extent that the complaint was intended to mirror that raised before the Federal Magistrate, ie he was denied his rights to give his evidence properly because of interruptions etc, one can only say, as the Federal Magistrate said, that there was no evidence to establish that such was the case and that the importance of having a transcript if such allegations were to be made had been made apparent to the appellant.
12 The s 420 ground of appeal was particularised at least to the extent of a general allegation that the Tribunal failed genuinely to assess the evidence that was favourable to the appellant and that its decision had a propensity to adopt illogical or unbalanced reasons for rejecting that evidence. As with the Federal Magistrate, I am satisfied on the material before me that the Tribunal did make a genuine attempt to assess truth of the appellant’s claim and that otherwise this ground does no more than seek what is in essence merits review of the Tribunal’s decision.
13 Accordingly, I find no error in the Federal Magistrate’s decision
and neither is any jurisdictional error discernible in
the decision of the
Tribunal. I will order that the appeal be dismissed and that the appellant pay
the first respondent’s
costs of the appeal.
Associate:
Dated: 22
February 2008
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Counsel for the First Respondent:
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Solicitor for the First Respondent:
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Date of Hearing:
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Date of Judgment:
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