SZJTP v Minister for Immigration & Citizenship [2007] FCA 1360

FEDERAL COURT OF AUSTRALIA

SZJTP v Minister for Immigration & Citizenship [2007] FCA 1360

SZJTP v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 747 OF 2007

DOWSETT J

1 AUGUST 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 747 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJTP

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: DOWSETT J

DATE OF ORDER: 1 AUGUST 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. the appeal be dismissed; and 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. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 747 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJTP

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: DOWSETT J

DATE: 1 AUGUST 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 In the course of his submissions the appellant indicated that he wanted me to listen to a tape recording of the proceedings before the Tribunal. As the tape was not in evidence before the magistrate, I treated that as an application to lead fresh evidence. I explained to the appellant that additional evidence is not usually received on appeal, particularly in the absence of an explanation as to why it was not led below. I understood him to say that the tape goes to the issue of bias or apprehended bias. I gave the appellant an opportunity to identify the subject matter on the tape which he wished to put in evidence. He mentioned one matter, which was dealt with in the reasons of the magistrate. It concerned a remark made of the Tribunal at the hearing. I will deal with that matter at a later stage. He did not identify any other matters of relevance. He said that it was more a question of the Tribunal's language and tone. What he meant by "tone" is unclear. The Tribunal's statements were interpreted for his benefit. The appellant has not demonstrated to me that there is likely to be anything relevant on the tape. In those circumstances, given that the tape was not in evidence before the magistrate, I see no reason to receive it in evidence now. 2 This is an appeal from the decision of a federal magistrate, declining to review a decision of the Refugee Review Tribunal, dated 24 October 2006. That decision affirmed an earlier decision of a delegate of the Minister, declining to grant the appellant a protection visa. The appellant arrived in Australia on 22 April 2006. He was, at the time of the hearing in the Tribunal, 28 years of age. He is a Chinese national. He was educated in China and in Japan, finishing his education in Japan in April 2006. Whilst in Japan, he obtained an Australian visa and returned to China before coming to Australia. He claims that during his time in Japan, he discovered the benefits of what he describes as '… a transparent world without information block', and that he commenced to write political opinion material which he posted on the Internet. He said that after his return to China in April 2006, and before his departure for Australia, he realized that his family was being watched. He was told that he might be arrested for reason of his expressions of political opinion. He also said that he had defended the Falun Gong organisation, although he does not claim to have been a member. His application was therefore based upon an alleged fear of persecution by reason of his political opinion. The Tribunal simply did not accept his story. It considered that it was lacking in particularity, and that he had been unable to provide sufficient detail of his claimed political activity, or any basis for fearing persecution. This view was reasonably open on the material. 3 The appellant raises three grounds of appeal. They are, however, a repetition of the criticisms made to the magistrate concerning the Tribunal's decision, rather than identifiable errors made by the magistrate. It might be said that the appellant complains that the magistrate erred in not recognising the validity of his criticisms of the Tribunal's decision. 4 The first ground is that the Tribunal's decision was not based on a rational and logical foundation. Clearly, the decision was based upon the Tribunal's rejection of the appellant's account. I see no basis for inferring that the decision was not rational and logical, even assuming that such criticism might justify a finding of jurisdictional error. 5 A second ground involved reliance upon s 424A of the Migration Act 1958 (Cth). However, as that argument was advanced before me, it related to the Tribunal's reasons for its decision. The appellant claimed that he had not received them. That cannot constitute a failure to comply with s 424A although it may indicate a failure to comply with some other provision of the Act. The point was not taken before the magistrate. It seems quite unlikely that those proceedings could have been prosecuted to conclusion without the appellant becoming aware that the magistrate had the Tribunal's reasons and he did not. Further, it seems unlikely that the appellant could have formed the view that the decision was not rationally and logically based if he had not read the reasons. The material in the Court file indicates that the reasons were sent to him and, in an affidavit filed on 28 November 2006 in the Magistrates Court, he refers to 24 October as the date of the Tribunal's decision. That date appears on the front page of the reasons. It seems likely that the source of the appellant's knowledge of that date was the document. Because the matter was not raised below, the first respondent is not in a position to prove definitively that the reasons were sent, but I see no reason to allow the appellant to raise that issue at this late stage. Even now, there is no evidence of non-receipt of the reasons upon which I could act. 6 The third ground of appeal is that the Tribunal was biased against the appellant and that there was some degree of discrimination based on race. Before the magistrate this complaint primarily concerned one comment made by the Tribunal at the conclusion of proceedings. In order to understand that matter, it is necessary to understand that the proceedings in the Tribunal were conducted using an interpreter. The following passage appears in the Tribunal's reasons: 'In his application for review and in the Response to Hearing Invitation form, the [appellant] stated that he required a Mandarin interpreter. The Tribunal engaged the services of a Mandarin interpreter qualified at NAATI level 3. At the commencement of the hearing the [appellant] complained that he could not understand the interpreter, although the interpreter had no difficulty in understanding the [appellant]. The [appellant] conveyed that he wanted an interpreter from Yanji, a province in northern China. The Tribunal adjourned the hearing for 1 1/2 hours to obtain another interpreter, but was advised by the interpreter service that it would be unable to obtain a Mandarin-speaking interpreter from that province, because although Mandarin was spoken in the province the interpreter service did not have a record of provinces from which their interpreters came. When the hearing resumed, the [appellant] was informed of this. He asked for an adjournment and was informed that, if he felt unable to continue to give evidence at this hearing, the Tribunal would allow him 14 days in which to make any additional submission in writing. At this point, the [appellant] said there was no need for an adjournment if the interpreter "spoke slowly". From this point in proceedings the [appellant] had no noticeably difficulty in understanding the interpreter.' 7 The complaint made before the magistrate was not of bias so much as racial discrimination. However the magistrate interpreted it as a complaint of bias. At paras 38 and 39, the magistrate said: 'In his submissions to the Court the [appellant] has said that at the conclusion of the Tribunal hearing the Tribunal member said words to the following effect, "You made great progress in your Chinese." The [appellant] has complained that this demonstrated disrespect and suggests racial discrimination. Whether the [appellant] is merely saying that the Tribunal member was rude to him or whether he says that this evidences a bias against him is unclear. However, on the basis that it is an allegation of bias it is appropriate to observe that allegations of this sort which are very serious, can only be made out with clear and cogent evidence. There is no such evidence in this case and if what the [appellant] says was said, it would have appeared in a transcript, should one have been obtained by him. Absent clear and cogent evidence of bias whether actual or apprehended, no finding to that effect can be made by this Court, and this asserted ground of review is not made out.' 8 It was perhaps unfortunate that the Tribunal member should have made the remark in question, if indeed he did. However Tribunal proceedings are not Court proceedings. The more informal atmosphere may be conducive to comments of an informal nature. In any event the comment came too late in the proceedings to suggest an apprehension of bias. There is no reason why the Tribunal should not, by that stage, have formed a view about the appellant and his truthfulness. More importantly, however, the comment has to be seen in light of earlier events. Far from demonstrating any bias or inclination to racial discrimination, the Tribunal had gone to some trouble to accommodate the appellant's needs, first by adjourning the proceedings for a lengthy period in order to seek to accommodate him, and then by offering the opportunity to supplement any submissions in writing. The alleged remark reflects a suspicion that the appellant's complaint about the interpreter was not genuine but, as I have said, it occurred at the end of the proceedings. By that time, the Tribunal had enjoyed an opportunity to observe the appellant and to form views as to the extent of his language difficulty. In the circumstances, I see no basis for the assertion of bias, whether real or apprehended. 9 The appeal must be dismissed. I order that the appellant pay the first respondent's costs of the appeal. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.