SZIJY v Minister for Immigration & Citizenship [2008] FCA 138 (22 February 2008)

Last Updated: 22 February 2008

FEDERAL COURT OF AUSTRALIA

SZIJY v Minister for Immigration & Citizenship [2008] FCA 138

SZIJY v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

No NSD 2171 of 2007






FINN J
22 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2171 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZIJY Appellant
AND:	MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	FINN J
DATE OF ORDER:	22 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal fixed in the amount of $2,190.00.

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 2171 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZIJY Appellant
AND:	MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	FINN J
DATE:	22 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The appellant, a Chinese national, was an unsuccessful applicant for a protection visa. The reason for her lack of success in that application was that she was found not to be a truthful witness.

2 When she made her visa application the statutory declaration in English which accompanied it asserted a fear of persecution resulting from her being a known sympathiser of the peoples of Taiwan. The Minister’s delegate rejected the claims made on that account and the appellant then lodged an application for review to the Tribunal. In her review application she disclaimed her original statutory declaration asserting that she did not know the contents of it and in its stead she advanced a new statutory declaration asserting a fear of persecution by the Chinese authorities founded on quite different grounds.

3 The appellant now asserts that, having been made redundant by a bicycle factory at which she worked, she led protests against the failure of the factory to pay her her allowances. The persecution she allegedly suffered arose out of her arrest after she took part in protests against the action of the tyre factory and after her denunciation for spreading anti-government ideologies and destroying the Communist Party’s reputation. As is apparent from the Tribunal’s reasons, it only assessed her claims by reference to those made to it, but it did use information in the original application unrelated to her claims in it, as also information in a visa application she made for business entry into Australia, in making its assessment of the appellant’s credibility.

4 The appellant was closely questioned by the Tribunal at the hearing and inconsistencies in her evidence were systematically exposed. After the hearing, a s 424A letter was written to her – it was described as an "exemplary" letter by the Federal Magistrate – which set out at length the inconsistencies in her evidence. In the event, the Tribunal found her evidence to be thoroughly unconvincing and that she was not a witness of truth. It concluded:

"Overall, the Tribunal does not accept that the applicant has provided a truthful account to the Tribunal as to why she left China. The Tribunal is of the view that the applicant has been prepared to provide any evidence she thinks will assist her in obtaining the visa she wants. The Tribunal does not accept that the applicant was employed at the Tianjin no 2 Bicycle Tyre Factory. The Tribunal does not accept that she was retrenched from the factory. The Tribunal does not accept that the applicant participated in any protests or that she was detained for participating in any protests. The Tribunal does not accept that the PRC authorities planned to punish her or that the PSB came to her home with a warrant after her departure. The Tribunal does not accept that the applicant is on any adverse interest to the Chinese authorities for the reasons she has claimed."

THE APPLICATION FOR JUDICIAL REVIEW

5 The application to the Federal Magistrates Court relied upon three substantive grounds. The first alleged a failure by the Tribunal to assess her claims properly and fairly and it particularised at considerable length her disagreement with adverse comment made concerning her evidence in the Tribunal’s reasons; it contested the inconsistencies discerned by the Tribunal; and it asserted that the Tribunal ignored and distorted her claims and disregarded the pressure she was under. As the Federal Magistrate found, she was in essence seeking no more than impermissible merits review. It was the Tribunal’s duty to make up its mind as to her credibility and it did so adversely to her. No jurisdictional error was revealed in the manner of it so doing.

6 The second ground alleged a failure to comply with s 424A of the Act which required the Tribunal to give her particulars of any information that the Tribunal considered would be the reason or part of the reason for affirming the decision that was under review. She particularised this ground insofar as presently relevant in the following terms – "failed to give to me ... particulars of the pieces of information in relation to the abovementioned letter or issues arising from that letter". It is not at all clear as to what letter the appellant was referring in this regard. The Federal Magistrate considered that if she was referring to the s 424A letter that was sent to her, she was clearly wrong because all the pieces of information were provided as was an explanation of why it was relevant to the review. As I earlier indicated, his Honour described the s 424A letter as an exemplary one, a comment with which I agree. It was not obvious what other letter could have been referred to and for that reason the Federal Magistrate indicated he could not further comment effectively on this ground.

7 The third ground of review alleged a breach of s 425 of the Act, that section requiring the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to issues arising in relation to the decision under review. In essence, her claim here was that the Tribunal failed to provide her with a fair chance to give oral evidence because she had "been cut and interrupted by the Presiding Member". The Federal Magistrate indicated that this allegation had not been further particularised and no transcript had been produced. In the absence of any evidence, his Honour felt unable to make a finding of jurisdictional error in that regard.

THE APPEAL

8 The appeal to this Court raises, in substance, four grounds. The first, which was raised orally before the Federal Magistrate and summarily rejected, alleges bias against the Tribunal. This allegation was reiterated in the appellant’s oral submission. No particulars or evidence of this ground of appeal have been provided; the transcript is not in evidence; and there is simply no material upon which a finding of bias could be made. Equally, there is no material which could substantiate an allegation of a reasonable apprehension of bias. On the contrary, it is clear from the Tribunal’s decision that it gave careful attention to all of the appellant’s evidence, and it gave her every opportunity to present her case and to comment on the inconsistencies detailed in the s 424A letter. This ground lacks substance. As was apparent from her submissions at the appeal, hearing the appellant sought to convert the Tribunal’s unexceptional conclusion on credibility into evidence of prejudgment.

9 The second ground reiterates the first ground of the application to the Federal Magistrates Court, ie that the Tribunal unfairly and improperly assessed the appellant’s evidence in relation to differences between her claims in her initial application and ones in the application to the Tribunal. This ground does no more than challenge the Tribunal’s questioning and process of reasoning in reaching its finding on the appellant’s credibility. That finding was a matter for the Tribunal and there was no impropriety in its having regard to her initial application in the way that it did in informing its decision. The appellant equally asserted unfairness in the detailed scrutiny it made of her evidence and the consequential assessments it made. There is no jurisdictional error in a Tribunal subjecting evidence to critical scrutiny, the more so when the circumstances clearly raise credibility issues.

10 The third ground of appeal relates to an alleged failure to comply with s 424A(1) of the Migration Act 1958 (Cth) and it is particularised in identical terms to that in the application to the Federal Magistrate. The information to which this ground relates is, seemingly, that contained in the s 424A letter to her and for the reasons given by the Federal Magistrate the ground is quite misconceived.

11 The final ground of appeal again alleges a failure to comply with s 425 of the Act in that she was not given a genuine opportunity to present her arguments against the issues raised in the Tribunal review because of an alleged failure of the Tribunal to ensure she understood those issues. This is a different allegation to that made before the Federal Magistrate and was not considered by him. The appellant was assisted in her Tribunal application by a migration agent. The s 424A letter was sent to the migration agent and the response to it was made by the migration agent with an accompanying statutory declaration from the appellant which dealt with issues arising from the letter. Equally, at the hearing, she had the services of an interpreter and it has not been suggested that there was some deficiency in the interpretation that would have impaired her understanding of the issues. Neither is there any transcript before me to evidence misunderstandings arising during the course of the hearing. This ground is simply a bald and unsubstantiated assertion which must be rejected.

12 The Federal Magistrate’s decision is unexceptionable and I am similarly unable to discern any jurisdictional error in the Tribunal’s decision. I would have to say it involved a painstaking analysis of the appellant’s evidence, the Tribunal having provided the appellant with every opportunity to address the concerns it had with that evidence.

13 I will order that the appeal be dismissed.

14 The respondent Minister has applied under O 62 r 5(a) of the Federal Court Rules for a lump sum award of $2,190.75 in his favour of the costs of the appeal. Having considered the supporting affidavit, I will order that the appellant pay the first respondent’s costs of the appeal fixed in the amount of $2,190.00.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:
Dated: 22 February 2008

The Appellant appeared in person.
Counsel for the Respondent:	Mr P Silver
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	21 February 2008
Date of Judgment:	22 February 2008