SZKMN v Minister for Immigration and Citizenship [2007] FCA 1971

FEDERAL COURT OF AUSTRALIA

SZKMN v Minister for Immigration and Citizenship [2007] FCA 1971

SZKMN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD1489 OF 2007

FLICK J

13 NOVEMBER 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1489 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKMN

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: FLICK J

DATE OF ORDER: 13 NOVEMBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The Appellant is to pay the costs of the First Respondent of and incidental to 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 NSD1489 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKMN

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: FLICK J

DATE: 13 NOVEMBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Federal Magistrates Court delivered on 10 July 2007. 2 The Federal Magistrate dismissed an application to review a decision of the Refugee Review Tribunal handed down on 14 February 2007. BACKGROUND 3 The Appellant is a citizen of the People's Republic of China who arrived in Australia on 20 May 2006. He applied for a Protection (Class XA) Visa on 3 July 2006. The Appellant's visa application was refused on 29 September 2006. An application was then made to the Tribunal for review of that decision on 7 November 2006. GROUNDS OF APPEAL 4 The Notice of Appeal as filed in this Court identifies the purported ground of appeal as follows: The RRT failed to afford the applicant procedural fairness as it failed to carry out its duty under s424A of the Act, to invite the applicant to comment on relevant information: The applicant submitted to the Tribunal evidence showing his religious practice in Australia. The Tribunal gave no consideration to such evidence as it was satisfied that for the purposes of subsection 91R(3) of the Act that his conduct in meeting regularly with Church in Australia since June 2006 has been engaged in otherwise than for the purpose of strengthening his claim to be a refugee. The applicant claims that his purpose in engaging in church conduct is not for strengthening his refugee claims. The Tribunal failed to invite the applicant to comment on this information and failed to give the applicant an opportunity to establish his purpose of church activities. It is assumed that the "relevant information" referred to is that set out thereafter in the Notice of Appeal. No other "relevant information" has been identified.0 5 It is considered that this ground of appeal is to be dismissed. 6 Left to one side is the question as to whether the ground as formulated properly identifies a ground of appeal from the decision of the Federal Magistrates Court. The Appellant is unrepresented, and it may be better in such circumstances to address the substance of the argument he seeks now to advance. 7 The Appellant maintained that his conduct in regularly attending church in Australia was not for the purpose of strengthening his claim to be a refugee. He has repeated this assertion this morning. The ground of appeal now relied upon is the same as that previously advanced before the Federal Magistrates Court. Section 91(3) of the Migration Act 1958 (Cth), it may be noted, imposes an onus of proof upon the Appellant: see NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1536. Wilcox J there observed: [26] The effect of s91R(3) is that an applicant has an onus of proof in relation to activities in Australia. The person must satisfy the Minister or the Tribunal, as the case may be, that the relevant conduct was engaged in "otherwise than for the purpose of strengthening the person's claim to be a refugee". The onus of proof is, no doubt, to the civil standard; but it is an onus borne by the applicant. It is a change from the usual position faced by the Tribunal, where the benefit of doubtful facts must be given to an applicant for refugee status. This decision was approved by the Full Court in SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 at [39]. See also: SZFAR v Minister for Immigration and Citizenship [2007] FCA 1095. 8 The Tribunal addressed the argument of the Appellant and resolved it against him. The Tribunal accordingly found that the Appellant had not discharged his onus of proof. The ground, however, is now repeated in this Court. It essentially has two limbs to it: the first being a contention that the Tribunal failed to have regard to evidence as to the Appellant's religious practise in Australia; the second being a contention that the Appellant was denied an opportunity to comment on "information" and denied an opportunity to establish the purpose behind his church activities. Neither limb of the argument can be sustained. 9 The Tribunal did, in fact, give consideration to the evidence adduced by the Appellant. The Tribunal considered the evidence before it and made its findings of fact. In the course of its reasons, the Tribunal observed: The applicant submitted a letter to the Tribunal from The Local Church in Sydney … which states that the applicant "has been meeting regularly with the Church since June 2006". He also submitted three photographs that showed him with "hu han pai brothers and sisters" in Australia. The Tribunal is not satisfied that for the purposes of subsection 91R(3) of the Act, that his conduct in meeting regularly with the Church in Australia since June 2006 has been engaged in otherwise than for the purpose of strengthening his claim to be a refugee. These findings were findings to be made by the Tribunal and, in any event, were open to it. The factual findings as made by the Tribunal were matters entrusted to it for its determination. 10 Before the Tribunal, the Appellant was given an opportunity to adduce evidence and make submissions on the issue of the letter from the Church. The Tribunal's reasons also record the following: In regard to the letter from The Local Church in Sydney, the tribunal explained the operation of section 91R(3) of the Act. The applicant said that he understood and that he had not joined the local Church for the purpose of strengthening his claim to be a refugee. Notwithstanding some misgivings, that statement from the Tribunal should be accepted. It unequivocally states that the operation of s 91R(3) was explained, and the reasons unequivocally state that the Appellant affirmed that he understood that explanation. 11 The reasons of the Tribunal are not to be construed in any pedantic fashion or to discern error unless it is apparent on the face of the reasons: see Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6, 185 CLR 259. The jurisdiction of the Federal Magistrates Court is to discern whether or not there has been jurisdictional error committed by the Tribunal. It is not the function of the Federal Magistrates Court to revisit the findings of fact made by the Tribunal for the purpose of making findings of fact afresh. The Federal Magistrates Court did not discern any error on the part of the Tribunal. That Court referred to the argument sought to be advanced by the now Appellant and continued: [19] …the Applicant's claim that the Tribunal gave no consideration to that evidence is not borne out by the Tribunal's decision. A reading of the Tribunal's findings and reasons at pages 77 and 78 of the Court book or pages 12 and 13 of the supplementary Court book will show that the Tribunal did consider this evidence. It did not accept the evidence. [20] The ground that the Applicant claimed that his purpose of engaging in church conduct was not to strengthen his refugee claims contained in the application is no more than an invitation to the Court to conduct a merits review. A Court conducting judicial review of a decision for the Refugee Review Tribunal does not have the power to consider again the factual evidence and make its own decision. As Gyles J said in SZHCJ v Minister for Immigration and Multicultural Affairs [2007] FCA 205 at [3]: Insofar as the Federal Magistrates Court is concerned, it has no role to second-guess the Tribunal on matters of fact or judgment. The Federal Magistrates Court can only correct the Tribunal if jurisdictional error is revealed. These findings of the Federal Magistrates Court, it should be noted, follow an earlier reference to the Tribunal making adverse findings as to the Appellant's credit. The Tribunal had concluded: The applicant did not impress the Tribunal as being a credible witness. 12 In this Court it was correctly contended on behalf of the Respondent Minister that the present ground of appeal is nothing more than an attempt to impermissibly conduct a merits review of the Tribunal's decision. Reliance was placed upon the decision in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, 235 ALR 609. Gleeson CJ, Gummow, Callaghan and Crennan JJ there observed: [21] Section 424A has a more limited operation than the appellants assumed: its effect is not to create a back-door route to a merits review in the federal courts of credibility findings made by the Tribunal. The Federal Magistrates Court was also correct in its conclusion that there was no breach of s 424A. 13 In SZBYR, supra, their Honours had previously observed: [18] Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of para (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [(2004) 206 ALR 471 at 476–7] that the word "information": does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc. If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. Whatever may be the "relevant information", it is thus not surprising that the Federal Magistrates Court concluded: [18] It is, of course, patently obvious that the breach of s 424A that the Applicant claims is not a breach of s 424A at all. The information that the Applicant claims he was not given the opportunity to comment upon was information that the Applicant provided to the Tribunal for the purpose of the application. It is specifically excluded from the operation of sub-section 424A(1) of the Act because it comes under the exception in sub-section 424A(3)(b) of the Act. Concurrence is thus expressed with the conclusion that there has been no breach of s 424A. 14 Nor that there has been any breach of procedural fairness. In reaching that conclusion it is considered that the decision of Buchanan J in SZILQ v Minister for Immigration and Citizenship (2007) FCA 942 is distinguishable. His Honour in that decision concluded that s 91R(3) of the 1958 Act did not impose any positive obligation on the Tribunal to put allegations to the Applicant. His Honour observed: [24] There is, in my view, some substance in the suggestion in the first ground of appeal that there was no apparent evidentiary foundation for the firmly adverse conclusion about the appellant's motivation and the confident denouncement of his claimed religious beliefs. I do not accept, however, that there was a positive obligation on the RRT to put the allegation to him. Ultimately the burden under s 91R(3) lay on the appellant to satisfy the RRT about his motivation before the RRT was permitted to pay any regard to his conduct in Australia, which is the issue upon which the appeal has been focussed. The second ground of appeal cannot be sustained either, having regard to the terms of s 91R(3). It was, as I have said, ultimately a matter for the appellant to satisfy the RRT about his motivation. His Honour, however, went on to conclude that although there was no breach of s 91R(3), there had been a denial of procedural fairness, and that such an argument was not precluded by s 422B of the Act. In that matter, the Appellant's migration agent had expressly requested an opportunity at an oral hearing for the Appellant to deal further with some "new information", which included material about his conduct in Australia. That opportunity had there been refused. In the present case, by way of contrast, the Tribunal both explained the operation of s 91R(3) to the Appellant and recorded its finding that the now Appellant understood. 15 The ground of appeal is dismissed. ORDERS 16 The Court orders that: 1. The appeal be dismissed. 2. The Appellant is to pay the costs of the First Respondent of and incidental to the appeal. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.