FEDERAL COURT OF AUSTRALIA SZIPZ v Minister for Immigration & Citizenship [2007] FCA 1333 CITIZENSHIP AND MIGRATION – migration – review of decisions – judicial review – grounds of review – jurisdiction errors – no reference in Refugee Review Tribunal's reasons for decision to any evidence to support a finding made by Tribunal – availability of injunction to compel compliance with s 430(1(d) Migration Act 1958 (Cth) – discretionary refusal of relief Migration Act 1958 (Cth) s 430(1)(d) Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 cited SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 referred to SZIPZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 251 OF 2007 MADGWICK J 20 AUGUST 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 251 OF 2007 BETWEEN: SZIPZ Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: MADGWICK J DATE OF ORDER: 20 AUGUST 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be 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 251 OF 2007 BETWEEN: SZIPZ Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: MADGWICK J DATE: 20 AUGUST 2007 PLACE: SYDNEY REASONS FOR JUDGMENT HIS HONOUR 1 This is an unfortunate case. 2 The appellant is a national of the People's Republic of China ("PRC") who unsuccessfully claimed refugee status before the Refugee Review Tribunal ("the Tribunal") and the matter comes before me on appeal from a judgment of the Federal Magistrates Court which declined an application for judicial review. The appellant was unrepresented both before the learned Federal Magistrate and originally before me. However, on reading the decision of the Tribunal member there were aspects that concerned me and Mr Zipser has kindly appeared for the appellant to assist the Court in relation to those concerns. 3 The appellant's claims were that he worked in a state-run cold store where working conditions were poor and the repeated exposure to extreme temperature changes brought on premature hair loss. He and others demonstrated outside their workplace against these working conditions in August 2004. In consequence he claimed that he was arrested and held by internal security police who tortured him and that he was detained for several weeks until he "confessed" his "anti-government" behaviour. Thereafter he claimed that in March 2005 he came to know a journalist who was interested in his story and assisted that journalist to compile a story about his plight. This resulted in the journalist being suspended from his job in July 2005. 4 The police again began questioning the appellant. He decided to leave the country, bribed a policeman to postpone the investigation long enough to help him get away, and came to Australia in August 2005. He claimed that after he arrived here the investigation proceeded and that his co-workers had been arrested for their role in what the authorities perceived as an anti-government movement. 5 The Tribunal accepted that he was indeed a cold storage worker as claimed who had demonstrated against working conditions with scant satisfaction. However, the Tribunal member continued: The Tribunal does not accept that the Applicant was detained in relation to a demonstration over safety conditions in his place of employment, not even in circumstances where his employer was the state. Even if he had been, the Tribunal would not accept on the evidence before it that the detention had any Convention-related implications. The Applicant, in his own account, was released without charge and there is no evidence to suggest that the authorities considered their authority significantly threatened. 6 The Tribunal otherwise considered that the appellant's free use of his passport indicated that he was not of interest to the authorities at the time he left the PRC and the Tribunal considered that the account of bribery was implausible on the probabilities which the Tribunal member discussed. The Tribunal member also rejected the claim in relation to the journalist, pointing out that aspects of the appellant's story were inconsistent and taking the view that "the Applicant invented this part of the story to extend the lifespan of the story about the 2004 demonstration long enough to catch up with the August 2005 dates in his passport." Apart from the paragraph which I have quoted in full, and viewing the Tribunal member's reasons with due charity, it seems to me that there can be no legal complaint about the balance of the reasons. In relation to the quoted paragraph, however, I have deep concerns. 7 The first sentence rejects the appellant's claim of detention. Given that the appellant's account was that he was an organiser of a public demonstration against a communist government-owned employing authority there is on the face of affairs, as represented in the decision of the Tribunal member, nothing to indicate that the appellant's story was so improbable as to compel its rejection. If the matter were to be considered on an a priori basis, indeed, the decision might have been expected to go the other way. However, in the course of the hearing, the Tribunal member raised concerns about this matter with the appellant and referred in generalised terms to "my reading of the country information in China" according to which the member put to the appellant that "publicly calling for better safety precautions … is not something that the Beijing Government is going to take an interest in". 8 Notoriously the winds of change have been blowing through China and the extent to which they may have relevantly affected a claim such as that made by the appellant might well have been discussed in the kinds of international publications habitually resorted to by the Tribunal and referred to generally as "country information". It is true, as Mr Zipser argued for the appellant, that, not having set out what the evidence was to support his finding against the appellant, it would be open to the Court to infer that there was no such evidence at all and consequent jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. However, since I have the relevant part of the transcript it does not seem to me to be fair, in the circumstances of this particular case, to draw that inference (which in general, in the interests of transparency, courts should not be slow to draw). 9 A question arose as to whether, nevertheless, an order or injunction might go to the Tribunal member to cause him to comply with his obligation under s 430(1)(d) of the Migration Act 1958 (Cth) to "refer to the evidence or … other material on which the findings of fact were based". In my opinion, in a proper case, the Court would have jurisdiction to issue such an order and ought not be slow to do so and, but for the matter to which I am about to come, I would have done so in this case: see Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355, [100]. 10 Mr Smith, counsel for the Minister, points out that the Tribunal member in fact also considered the matter on the assumption that the appellant had been detained as he alleged in the second and third sentences of the quoted paragraph. 11 Mr Zipser complained of the second sentence that the Tribunal could not have used the language there set out unless it had misconceived what was involved in a claim of persecution for reasons of political opinion. Clearly enough, a public demonstration against a government-run enterprise followed by arrest by the security police, would have to be regarded as the infliction of harm for reasons of the subject person's political opinion. However, again, exercising the degree of charity to which a Tribunal member is on the authorities entitled, I think such a view of the Tribunal's words is, in their context, to misread them. It is true that the sentence, read alone, would bear the imputation and the consequent criticism identified by counsel for the appellant. But, reading the sentence in the context, particularly of the next sentence and of the paragraph that follows, I think it is fair to say that the Tribunal was not denying the potential Convention significance of demonstrating against a state employer but was asserting that, in his view, and on the other facts that he found, there was no implication arising out of what had happened to the appellant, for his future safety. There had been no indication that the appellant would wish further to agitate the matter of the cold store conditions if he returned to China, nor was there any other basis upon which he might so behave as to attract the attention of the authorities. The Tribunal member, it seems to me, was really saying that if the appellant had been detained as he claimed, there was no well-founded fear that any future harm to him might come from that fact or the underlying reason for its having occurred. 12 From what I have said earlier, it is apparent that on my reading of the Tribunal's decision there is an independent ground, namely, no basis for a well-founded fear for the future, for rejecting the appellant's case. Even if the finding that he was not detained as claimed were legally objectionable, which as matters presently stand it appears to be, in such a case the question arises whether in its discretion a court should take any steps to remedy the legal deficiency identified. 13 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 is authority for the proposition that a proper exercise of the discretion requires that relief should not issue in such circumstances. So much, with respect, also appears to me to be plain common sense and I regret that the appellant must fail here. 14 It will be apparent that issues were debated in this Court that were not debated before the learned Federal Magistrate but they do not require the Court to find any error on the part of the court below. 15 The appeal will be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 4 September 2007 Counsel for the Appellant: Mr B Zipser Counsel for the Respondent: Mr J Smith Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 20 August 2007 Date of Judgment: 20 August 2007