SZILR v Minister for Immigration & Citizenship [2007] FCA 1699

FEDERAL COURT OF AUSTRALIA

SZILR v Minister for Immigration & Citizenship [2007] FCA 1699 MIGRATION – consideration of an appeal from the Federal Magistrates Court raising the question of whether the Refugee Review Tribunal was entitled to rely upon conflicts in the evidence of the appellant so as to ground an adverse finding of credibility leading to a conclusion that the appellant had not satisfied the Tribunal of a well‑founded fear of persecution for a Convention reason Decision Appeal dismissed with costs Migration Act 1958 (Cth), s 424A(1) SZILR v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD1325 of 2007

GREENWOOD J

5 november 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY NSD1325 of 2007

BETWEEN: SZILR

Appellant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

AND REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GREENWOOD J DATE OF ORDER: 5 NOVEMBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. The appellant pay the respondents' 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

QUEENSLAND DISTRICT REGISTRY NSD1325 of 2007

BETWEEN: SZILR

Appellant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

AND REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GREENWOOD J

DATE: 5 NOVEMBER 2007

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT 1 By a notice of appeal filed 11 July 2007 the appellant appeals from a judgment of Federal Magistrate Emmett delivered on 29 June 2007 dismissing with costs an application for judicial review of a decision of the Refugee Review Tribunal handed down on 30 January 2007 by which the Tribunal affirmed a decision of a delegate of the then Minister for Immigration and Multicultural and Indigenous Affairs to refuse the appellant a protection visa. The appellant has appeared in person this morning, supported by an interpreter, and in the course of making some observations in support of the appeal, the appellant expressed concern that the Tribunal did not seem to appreciate that he had been injured in the course of an industrial workplace accident which I will mention in more detail shortly. 2 The appellant also expressed concern that the Tribunal did not believe him. His concern is that he was, in fact, telling the truth to the Tribunal. The appellant also relies upon a question of inconsistency in evidence before the Tribunal and complains that there was no inconsistency because his evidence was misunderstood by the Tribunal. However, the appellant reinforces that contention by saying that, "What I said was true" therefore, 'I must have been misunderstood'. It can be seen therefore that in simple terms the appellant is concerned about the inconsistency really as a legacy of a concern that his evidence on the facts was not accepted as correct. 3 The notice of appeal before the Federal Court is in identical terms to the application made before Emmett FM and in truth therefore, the question alive before this Court is whether her Honour fell into error, the contended error being a failure to apprehend error on the part of the Tribunal. The appellant is a citizen of the People's Republic of China. The appellant arrived in Australia on 31 August 2005 and applied for a protection visa on 12 September 2005. On 31 October 2005 the Minister's delegate refused to grant the appellant a protection visa. 4 On 28 November 2005, the appellant applied to the Tribunal for review of the delegate's decision. The Tribunal affirmed the delegate's decision on 18 January 2006. However, that decision was set aside by consent by order of the Federal Magistrates Court. On 22 September 2006, the appellant appeared at a hearing before a differently constituted Tribunal. The appellant's claims to a well‑founded fear of persecution for a Convention reason were set out in a statutory declaration annexed to his application for a protection visa. These claims were confirmed by the appellant at the hearing before the Tribunal. In essence, the appellant, a painter by trade, claimed to fear persecution from Chinese authorities arising out of protests in Fuqing in March 2005 which he claimed to have helped to organise. 5 The protests which the appellant claimed were made the subject of suppression actions by Chinese authorities on the ground of anti‑government activities arose out of a failure of a construction company to compensate victims on a workplace accident in December 2004. Emmett FM has recited some of the factual claims made by the appellant in these terms: (5) The applicant claimed that in early 2004 Mr Lin was contracted by the F2CC – [which I will describe in these reasons as 'the company'] – to undertake a large paint job in Fuqing mall. The applicant stated that Mr Lin employed 30 painters for the job. The applicant stated that under the contract for the job the company would be responsible for providing workers compensation insurance for Mr Lin's painters. The applicant stated that the working conditions were unsafe and no insurance was provided. In December 2004 six painters fell and four were seriously injured and two died. The applicant claimed that an investigation by government officials and the company concluded that the accident was the fault of the painters and as a result, the company refused to pay compensation to the painters and their families. The applicant claimed that the accident was due to inadequate scaffolding and work conditions provided by the company. The applicant stated that he and Mr Lin believed that the investigators into the accident had been bribed. (6) In early March 2005 the applicant stated that he and Mr Lin organised a petition to protest over the accident and the company's inaction. The applicant claimed that the protests grew from about 40 to 50 people to about 400 to 500 people and had the effect of significantly disrupting construction of the Fuqing mall. (7) The applicant claimed that at the end of March 2005 police were sent in to suppress the protests resulting in the arrest of Mr Lin. The applicant claimed that he escaped into hiding with a friend in Xiamencity. 6 The factual background is elaborated further but these particulars set out the contention in relation to the incident itself and the insurance claim. 7 The Tribunal accepted that the contract provided that the company was responsible for work safety and insurance. The Tribunal also accepted that an accident occurred in December 2004 in which two painters were killed and four injured. The Tribunal further accepted that the appellant himself seriously injured his legs and ankles in the accident and spent a period of eight months recovering in two hospitals. While the Tribunal accepted that an investigation was held into the accident it did not accept the appellant's claims that officials failed to investigate properly or were bribed. The Tribunal found that the company failed to pay compensation notwithstanding a prima facie case of liability to do so under the contract. The Tribunal rejected the appellant's claims that he asked Mr Lin to arrange insurance. 8 The Tribunal reached a number of conclusions and I will briefly recite several of them. They are these: It [the Tribunal] does not accept as credible his [the appellant's] earlier claims that during this period he participated in seven demonstrations and in the preparation of written leaflets and petitions demanding compensation. The Tribunal accepts that with the help of relatives and friends he may have assisted with organising the protests from his hospital bed. However, it does not accept that this led to him being a person of interest to the authorities because he was Mr Lin's deputy and that his protests against the company were regarded as anti-government as claimed. The Tribunal has given the applicant the benefit of the doubt that his master Mr Lin was arrested in April 2005, although there is no definite evidence apart from the applicant's assertion that it was because he organised the demonstration for compensation. The Tribunal has noted that the applicant's evidence in regard to Mr Lin's role in providing insurance for the painters was conflicted and he may have been arrested because of the compensation issue. 9 The Tribunal then sets out four elements of a conflict in the evidence of the appellant. The Tribunal then concludes that in view of these contradictions in the appellant's evidence, the Tribunal does not believe him to be a credible witness. In consequence, the Tribunal concluded that although the appellant has claimed that he fears arrest on his return to the People's Republic of China because he was regarded by the authorities as Mr Lin's deputy, the Tribunal placed weight on the fact that he was not arrested and was allowed to leave China without any difficulty. 10 The Tribunal further concluded that it did not accept the appellant's claim that he was forced to flee China and that protection from authorities was his reason for doing so. The Tribunal further concluded that it did not accept that he played a significant if any role in organising the seven protests. The Tribunal further concluded that in view of the appellant's limited education and functional illiteracy, the Tribunal did not believe that the appellant had sufficient leadership skills to allow him to emerge as a person of concern to the authorities either now or in the foreseeable future. 11 The Tribunal concluded that the appellant gave evidence to the Tribunal that the protests over compensation ended in March 2005 and there was no indication from him that he would continue to pursue his claims should he return to China. As a result, the Tribunal was not satisfied that the appellant held a well‑founded fear of persecution for a Convention reason. In the Federal Magistrates Court, the appellant raised essentially three grounds. The first was that an error of law occurred in the Tribunal's decision‑making giving rise to a jurisdictional error. That ground is not supported by any further elaboration. 12 The second ground is that there was a procedural error in the Tribunal's decision and that error rests upon a failure on the part of the Tribunal to comply with its obligations under s 424A(1) of the Migration Act 1958 (Cth) (as amended). That contention rests upon a proposition that the Tribunal identified four grounds upon which there was a conflict in the evidence of the appellant and that in reaching a conclusion as to conflicting evidence (and therefore a finding about the appellant's credibility), the Tribunal failed to comprehend and understand what exactly was put to the Tribunal. 13 The further ground is one of bias on the part of the Tribunal. 14 As to the ground based upon the conflicting evidence, Emmett FM noted at [32] of her Honour's reasons a section of transcript which led the Tribunal to express its concern about inconsistency. In reliance upon the material and that section of transcript, the Tribunal formed its conclusionary view about the credit of the appellant. At [36] of her Honour's reasons, her Honour notes that the findings of fact made by the Tribunal were open to it and the appellant in essence seeks to challenge those findings of fact. 15 Those conclusions on the part of her Honour resonate with what has been said this morning by the appellant because in oral submissions with the assistance of an interpreter, the appellant essentially contests the findings of fact expressing concern that statements which he believed to be true were found, not to be true. That conclusion was plainly open to the Tribunal. As her Honour notes at [39] of her reasons: To the extent that the applicant contends that the contradictions or the Tribunal's finding of contradiction should have been put to the applicant for comment, such a contention is misconceived. The Tribunal is doing no more than evaluating the evidence before it, summarising the applicant's evidence and identifying those aspects of the applicant's evidence that it found to be contradictory. 16 I accept those observations as being plainly correct. 17 Accordingly, in relation to the first two grounds of jurisdictional error and procedural error, the appellant has not established those grounds. The third ground raised before this Court, like the ground raised before her Honour, is a ground of bias. There are no proper particulars given of that allegation either, of course, as to actual bias or apprehended bias. An allegation of actual bias is a very serious matter and an allegation of apprehended bias is also serious. It must be supported by proper particulars and proper evidence and cannot simply be made as a supplementary or additional ground unsupported by any material. Her Honour at [43] to [47] dealt with those contentions and I find no identified error in her Honour's reasoning on those matters. 18 One additional matter ought to be mentioned and that goes to an aspect of the contention both before this Court and before the Federal Magistrates Court that the Tribunal failed to understand the content or substance or thrust of the appellant's evidence before the Tribunal. As I indicated earlier, that contention now seems to rest upon the notion that what the appellant said before the Tribunal was true and the Tribunal failed to recognise the truth of that evidence rather than a conclusion that the evidence must have been misunderstood. I can find no basis for concluding that the evidence was misunderstood by the Tribunal. There was an assessment of the evidence and a view was formed that there were conflicts in the evidence which led the Tribunal to the ultimate view that the evidence could not be accepted. That view gave rise to the conclusion that the applicant before the Tribunal had not demonstrated a well‑founded fear of persecution for a Convention reason. That remains the position before this Court in the sense that no error of law has been demonstrated on the part of her Honour. Accordingly, the inevitable result must be that the appeal is dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.