FEDERAL COURT OF AUSTRALIA NBLE v Minister for Immigration & Citizenship [2007] FCA 502 MIGRATION – protection visa – no denial of natural justice – no failure to provide an opportunity to comment on material – no jurisdictional error Migration Act 1958 (Cth) Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 NBLE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 2443 OF 2006 BUCHANAN J 12 APRIL 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 2443 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: NBLE Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BUCHANAN J DATE OF ORDER: 12 APRIL 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The name of the first respondent be amended to Minister for Immigration and Citizenship. 2. The appeal is dismissed with costs. 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 2443 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: NBLE Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BUCHANAN J DATE: 12 APRIL 2007 PLACE: SYDNEY REASONS FOR JUDGMENT BUCHANAN J: 1 The appellant is a citizen of the People's Republic of China. He arrived in Australia on 26 October 2004. On 24 November 2004 he lodged an application for a protection (class XA) visa. On 7 December 2004 a delegate of the first respondent refused the application for a protection visa. 2 On 24 December 2004 the appellant applied for a review of the delegate's decision to the Refugee Review Tribunal ('the RRT'). In a decision handed down on 9 March 2005 the RRT affirmed the decision of the delegate not to grant a protection visa. On 31 March 2005 the appellant applied to this Court for judicial review of the decision of the RRT. On 20 April 2005 Emmett J transferred the proceeding to the Federal Magistrates Court. The application for judicial review was amended on 15 July 2005 to state the following substantive grounds: '3. The Grounds are: a. The Respondents denied the Applicant natural justice by not considering the context in which the Applicant will face persecution and serious harm for being a Christian member in China; b. The Respondents have not considered the evidence which is in favour of Applicant. They have only considered the evidence which is not in favour of Applicant. … 5. I say that such denial of natural justice has seriously deprived me of my chance of success to be recognized as a refugee that Australia has a duty to protect.' 3 Particulars of ground 3 were provided in the ground numbered 4. Those particulars advanced the following contentions: (a) the RRT was obliged to provide him with independent country information, for his comment pursuant to s 424A of the Migration Act 1958 (Cth) ('the Act'); (b) the information was too old to be useful; (c) there were other, unspecified errors in the RRT decision which constituted a denial of natural justice; 4 The appellant made a specific claim of past persecution for religious reasons. He said he was detained on 26 February 2003, beaten and interrogated. He was, he said, forced to sign a statement that he would not be involved in unregistered religious activities. The detention was said to be the consequence of a police raid upon the home church of 'Priest Zhao' with whom the appellant and his parents were accustomed to worshipping in the Christian faith. Fifteen people, he said, were arrested. Priest Zhao was sent to a labour camp. 5 None of this information was supported by any other material. An assessment of the appellant's claims depended, therefore, on an assessment by the RRT of both the ingredients of the appellant's claims and his overall claim to be in danger of religious persecution if he returned to China. The RRT summarised the discussion it had with the appellant about his claimed Christian faith, his detention and interrogation, a suggestion he made that he was required to report daily to the police and any steps he had taken to practice the Christian faith in Australia in the atmosphere of religious tolerance which he claimed he sought. 6 The RRT concluded that his claims should not be accepted. It was not satisfied he was a Christian by faith. It was not satisfied he had been detained for three days and beaten. It remarked that there was no claim that in the 20 months since February 2003 there was any further instance of detention, or that his wife (who with his children remained in China) had been questioned about him. The RRT also made findings that the appellant had embellished his claims and was not a credible witness. It was not satisfied that the appellant was a person to whom Australia owed protection obligations under the Refugees Convention. 7 The RRT is obliged by s 430 of the Act to give reasons for its decision, set out its findings on any material questions of fact and refer to the evidence on which the findings of fact are made, but findings as to credibility (whether generally or as to particular matters) and as to satisfaction that a claim for refugee status should be accepted are matters for the RRT, unless some jurisdictional error is shown. The merit aspects of such findings are not judicially reviewable (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405). 8 Lloyd-Jones FM dismissed the appellant's application for judicial review upon the foundation that the particulars in ground 4 of the amended application did not identify any legal or procedural errors. 9 The grounds of appeal as filed in this Court are as follows: '1. The respondents denied my natural justice by not considering the context in which I will face persecution and serious harm for being an underground Christian church member in China. 2. The respondents have not considered the evidence which is in favour of me. They have only considered the evidence which is not in favour of my application. 3. The Tribunal breached s 422B of Migration Act 1958 ('the Act') and the rule of natural justice in connection with the making of the decision. 4. RRT's decision is in breach of s424A and s441A of the Act. The Tribunal cited a couple of Country Information and made decision based on these information. But the Tribunal failed to give me the important information, completely and clearly, before the hearing which have been used as the reason or part of the reason, for affirming the decision that is under review, by one of the methods specified in s441A of the Act. The Tribunal failed to ensure me to well understand why the information, is relevant to my review. It is because of the reason mentioned above that it is impossible for me to have a fair chance to comment on the above information before and after hearing in writing or during the hearing verbally. 5. The Tribunal used my personal particular information which I gave to the Tribunal, as the reason, or part of the reason, for affirming the decision that is under review. But the Tribunal did not comply with s424A of the Act to ensure me, as far as is reasonably practicable, to understand why it is relevant to my review. The Tribunal failed to invite me, by one of the methods specified in s441A of the Act, to comment on such personal particular information. 6. Also, the Tribunal has obviously ignored the fact that it is almost impossible for the interpreter, at the hearing, to accurately and clearly translate relevant Independent Country Information or the information used by the Tribunal to assess my review application with special religious terms; it is definitely impossible for me to make a complete comment on such information without a full and good understanding. 7. I say that there are procedural errors in Tribunal's decision constituting an absence of natural justice.' 10 It may be noted that no error in the judgment of Lloyd-Jones FM is alleged. 11 I shall deal briefly with the allegations of error by the RRT set out in the grounds of appeal as filed. They each fail to address the central difficulty for the appellant; namely, that he was not believed about his individual or overall claims. 12 Grounds 1 and 7 were assertions of procedural unfairness. They do not disclose any matter of substance. 13 Ground 2 should not be accepted. It is clear that the RRT did not accept the appellant's claims but there is no basis to suggest it did not consider them. 14 Ground 3 misconceives the effect of s 422B of the Act, which is to codify the requirements of natural justice in relation to hearings of the RRT. 15 Grounds 4, 5 and 6 wrongly state the effect of s 424A and s 441A of the Act. Section 424A does not require that an applicant be given general country information for comment, nor be invited to further comment on material advanced by the applicant to the RRT in support of claims. Section 441A had no role to play in these circumstances. 16 Prior to the hearing of the appeal the appellant filed a document, entitled 'Applicant's Outline of Submission'. Aside from formal parts it was relevantly indistinguishable in its content from grounds 3-5 of the amended application for judicial review which was dealt with by Lloyd-Jones FM. Like the grounds in the notice of appeal filed in this Court, no allegation of error in the judgment of Lloyd-Jones FM was advanced. 17 In view of the fact that, by his written submissions, the appellant specifically renewed the arguments put to Lloyd-Jones FM I set out hereunder those grounds, as extracted in para 7 of his Honour's judgment and his Honour's discussion of them in paras 10-16 of his judgment: '7. On 15 July 2005, the applicant filed an amended application in accordance with the orders made by Emmett J on 20 April 2005. The amended application contained the following grounds: a. The Respondents denied the Applicant natural justice by not considering the context in which the Applicant will face persecution and serious harm for being a Christian member in China; b. The Respondents have not considered the evidence which is in favor of Applicant. They have only considered the evidence which is not in favor of Applicant. Particulars: (i) The Tribunal cited a couple of Country Information, first information titled "Shouters in China" (CIS Source: DFAT, CIR No 194/01, 03/07/01); and second information titled "Departure Procedure" (China: Passport and Exit Permit Issuing Procedures: CIS Request CHN 17/02/98); (ii) The Tribunal did not comply with its obligations under s424A of Migration Act 1958 ("The Act") in respect of the above-mentioned information, particularly, the first County Information about employment status for application for a passport in China (Page 7 on "RRT Decision); (iii) In addition, the second Country Information which Tribunal used to assess my application was obviously too old to regard as an evidence in decision making; (iv) Applicant argues that the current real situation in China today is: a so-called Network (including families, relatives and friends) is still working very well. At least, the network is still able to help a PSB wanted people to obtain a passport traveling overseas, because it is a short-term action, which usually will not be found out by authorities. (v) Although, a network may not be able to protect such a PSB wanted person or to ensure such a person's safety and security in China; (vi) In addition, Tribunal has apparently failed to give me these important information, completely and clearly, before or during the hearing, which have been used as the reason or part of the reason, for affirming the decision that is under review; (vii) The Tribunal has, particularly failed to ensure me, during the hearing, to well understand why the information, normally called as "Independent Country Information" (ICI) is relevant to the review; (viii) It is because of the reason mentioned above that it is impossible have a fair chance to comment on the ICI before or during or after the hearing; (ix) I believe that the Tribunal should provide me a complete ICI or the particular information which would be the reason or a part of the reason, for affirming the decision that is under review, by one of the methods specified in s441A of the Act before the hearing, so that I could make any comments on the information before hearing in writing or during the hearing verbally; (x) Also, Tribunal has obviously ignored the fact that it is almost impossible for the interpreter, at the hearing, to accurately and clearly translate relevant ICI or the information used by the Tribunal to assess my review application with special religious terms; it is definitely impossible for me to make a complete comment on such information without a full and good understanding; (xi) There are procedural errors in Tribunal's decision constituting an absence of natural justice; (xii) In summary, the Tribunal failed to use correct and latest information to assess my review application in a correct and reasonable method. I say that such denial of natural justice has seriously deprived me of my chance of success to be recognized as a refugee that Australia has a duty to protect.' … 10. In respect of particulars (i), (ii), (vi) and (ix), the applicant contends that the Tribunal's reference to country information constituted a failure to comply with s.424A(1) of the Act. Mr Jordan submits that this contention must be rejected because the country information falls within the exception in s.424A(3)(a): Minister for Immigration v NAMW (2004) 140 FCR 572 at [66] – [74], [125] – [138]; WAJW v Minister for Immigration [2004] FCAFC 330 at [43] – [46]; QAAC v Refugee Review Tribunal [2005] FCAFC 92 at [20] – [30]. 11. Particulars (vii) and (viii) claim that the Tribunal failed to ensure that the applicant understood the relevance of the above mentioned country information during its hearing, which led to him not having a chance to comment on that information. This complaint does not identify a jurisdictional error. In relation to the disclosure of country information relied upon by the Tribunal, s.424A of the Act satisfies the natural justice hearing rule as pursuant to s.422B of the Act. Section 422B came into effect on 2 July 2002 and applies to applications for review lodged after that date pursuant to Schedule 1, Item 7 of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth). The application for review in this matter was lodged with the Tribunal on 24 December 2004: see Minister for Immigration v Lay Lat (2002) 151 FCR 214 at [66] – [70]. Mr Jordan submits that the country information and its relevance were squarely raised by the Tribunal during its hearing: CB 59. 12. Particulars (iii) and (xii) assert that the country information was too old to be relied upon by the Tribunal and therefore out of date. Mr Jordan submits that this assertion cannot be sustained because there is no evidence to suggest a change in circumstances in the PRC which affects the relevance of the information. Moreover, a failure to find and obtain the most up to date factual information available does not constitute jurisdictional error. Justice Bennett in Applicant S76 of 2003 v Minister for Immigration [2004] FCA 1107 at [28] said: In any event, as counsel for the first respondent contended, a failure to search for and obtain the most up-to-date factual information available does not constitute jurisdictional error in the context of the Migration Act 1958 (Cth). The circumstances of this case are not comparable to those considered by the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 ('Peko-Wallsend'). In that case the Minister had ignored material, of which he had actual or constructive knowledge, that might have had a direct bearing on the justice of the decision that the Minister was required to make. Peko-Wallsend is not an authority concerning the failure to seek or find material supportive of an applicant's case. The above decision was affirmed on appeal in Applicant S76 of 2003 v Minister for Immigration [2005] FCAFC 120. 13. Particulars (iv) and (v) traverse the merits of the Tribunal's decision and, as such, do not articulate any jurisdictional error. A merits review is not available in these proceedings. Minister for Immigration v Wu Shan Liang(1996) 185 CLR 259 at [31] per Brennan CJ, Toohey, McHugh and Gummow JJ said: … any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision … This Court cannot engage in merits review and it is not part of its task to do so. Nor is it the task of this Court to conduct a rehearing of the merits. This has been explained on numerous occasions, in particular by Allsop J in SZDFO v Minister for Immigration [2004] FCA 1192 and NARE v Minister for Immigration[2004] FCA 554 and by the Full Federal Court in NAAH v Minister for Immigration [2002] FCAFC 354. 14. Particular (x) complains that the Tribunal ignored the fact that it is almost impossible for an interpreter, at a Tribunal hearing, to accurately and clearly translate country information. This complaint is without basis because there is no evidence to suggest that the Tribunal's reference (during the hearing) to short extracts of the country information presented any difficulty for the interpreter. The Tribunal hearing record is silent on this issue and a transcript of the hearing was not filed as evidence in this Court. The absence of a transcript makes it extremely difficult for the applicant to sustain this ground of review. 15. Particular (xi) asserts that procedural errors affecting the Tribunal decision which constitutes a denial of natural justice. Mr Jordan submits that in the absence of further particulars, and in light of s.422B of the Act, there is no basis for this assertion. 16. I accept the submissions made by Mr Jordan that the Tribunal's findings were open to it for the reasons it gave and do not disclose any legal or procedural errors. In particular, the obligation under s.424A(1) did not arise because the Tribunal's findings were based upon information advanced by the applicant for the purposes of his application to the Tribunal, comprising his evidence at the hearing (CB 58-60) and the contents of his passport (CB 40, 60.9). Therefore, the exception in s.424A(3)(b) of the Act applied.' 18 At the hearing of the appeal, the appellant did not add anything further by way of oral submission. 19 I see no error in the way Lloyd-Jones FM dealt with the appellant's arguments. None was specifically suggested by the appellant. 20 I accept the submission made by Mr Reilly, who appeared for the first respondent, that each of the matters relied upon by the appellant as set out in the written submission were dealt with by Lloyd-Jones FM and that each of his contentions must be rejected for the reasons given by his Honour. 21 As no error in the judgment of Lloyd-Jones FM is established and no jurisdictional error in the RRT decision is established the appeal must be dismissed. It should be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate: Dated: 12 April 2007 The Appellant was self represented Counsel for the Respondent: Mr T Reilly Solicitor for the Respondent: Mr O Young of Blake Dawson Waldron Date of Hearing: 7 March 2007 Date of Judgment: 12 April 2007