FEDERAL COURT OF AUSTRALIA SZJVZ v Minister for Immigration and Citizenship [2008] FCA 221 SZJVZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 2285 OF 2007 GILMOUR J 4 MARCH 2008 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 2285 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZJVZ Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GILMOUR J DATE OF ORDER: 4 MARCH 2008 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs to be taxed if not agreed. 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 2285 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZJVZ Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GILMOUR J DATE: 4 MARCH 2008 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal from the orders made by Federal Magistrate Emmett on 1 November 2007 dismissing an application for review by the appellant in respect of a decision of the Refugee Review Tribunal ("the Tribunal") made on 24 October 2006. The Tribunal had affirmed the decision of a delegate of the first respondent made on 14 July 2006 not to grant a protection visa. BACKGROUND 2 The appellant is a citizen of the People's Republic of China who arrived in Australia on 10 April 2006. The appellant claimed she had a well-founded fear of persecution due to her practice of Falun Gong. In her protection visa application the appellant claimed that she began practicing Falun Gong after a friend introduced her to it in about 1999. She claimed that in 2001 police broke into her home and arrested her, tore off her clothes and dragged her along the concrete floor causing injury to her. She claimed that in the detention centre, she suffered electric shocks, brainwashing, savage beatings and force-feedings. After her release, she was allegedly fired from her job and remained unemployed. The appellant claimed she was treated inhumanely and seen as an "evil" person, even by her daughter. 3 However before the Tribunal the appellant claimed that she was introduced to Falun Gong in 1997. She claimed she was detained by police a number of times, once in 1999, overnight, a few months later she was detained for one day and in 2001 she was detained for 15 days at a re-education centre. PROCEEDINGS BEFORE THE TRIBUNAL 4 On 8 August 2006 the appellant applied to the Tribunal for a review of the delegate's decision. 5 On 20 September 2006 the Tribunal sent the appellantaletter pursuant tos 424A of the Migration Act 1958 (Cth) ("the Act"). It invited the appellant's comments in relation to discrepancies between information in her protection visa application and evidence given by her to the Tribunal. No response was sent by the appellant. 6 The Tribunal concluded that the appellant was not a credible witness. That finding principally arose because the appellant's oral evidence to the Tribunal was different "in its entirety" to her protection visa application and she was unable to give a satisfactory explanation for the discrepancy. The Tribunal found that the appellant lacked knowledge of Falun Gong exercises. It rejected her claim that she was a Falun Gong practitioner. The Tribunal was not satisfied that the appellant suffered the claimed harm or persecution and as a result did not have a well-founded fear of persecution for a Convention reason. PROCEEDINGS BEFORE THE FEDERAL MAGISTRATE 7 In her amended application to the Federal Magistrates Court filed on 22 March 2007, the appellant claimed that: 1. The Tribunal failed to consider my claims for my application for a protection visa in accordance with s 91R of the Migration Act 1958. 2. The Tribunal failed to provide me an adequate opportunity to respond the substance of the information. 3. The Tribunal failed to carry out its statutory duty. The Tribunal failed to consider my application for a protection visa in accordance with s 424A of the Migration Act 1958. Please refer to the following pages for details). 8 The Grounds for the Applicant are: 1. The Tribunal failed to carry out its statutory duty. Particulars (a) The only information before the Tribunal was that contained in the First Respondent's file and that given to the Tribunal by the Applicant. (b) The tribunal was required to provide particulars of the information that was the reason, or part of the reason for affirming the decision. Migration Act 1958, s 424A. The Tribunal was also required to explain why the information was relevant and provide the applicant with an opportunity to comment upon it. (c) The above particulars had to be provided in writing SAAP v Minister For Immigration And Multicultural And Industrial And Ethnic Affairs (2005) HCA 24 (18 May 2001). (d) The information to be given extends to that information given by the Applicant to the First Respondent as part of his application for a visa. (e) The Tribunal based its findings on the information, or lack of information, contained in the Applicant's application for a visa and was required, by s 424A, to give particulars of the information, explain why the information is relevant and provide the Applicant with an opportunity to comment upon it. The Tribunal's failure to so act was a jurisdictional error. 9 The grounds were not particularised and the Federal Magistrate held that they disclosed no error capable of review. Her Honour found that the findings were open to the Tribunal on the evidence before it, and that the Tribunal had complied with the statutory regime. The Tribunal's rejection of the appellant's claims were based on the adverse findings made by the Tribunal as to the appellant's credibility. NOTICE OF APPEAL 10 In the Notice of Appeal filed in this Court on 19 November 2007 the appellant claims that the Tribunal: (a) The Tribunal did not fully understand the claims of my application. The Tribunal had bias against me and failed to consider my application according to s 91R of the Migration Act 1958. (b) The Tribunal did not notify me the reason or part of the reasons for affirming the decision. The Tribunal failed to carry out its statutory duty. The Tribunal failed to consider my application according to s 424A of the Migration Act 1958. (c) The Tribunal failed to refer to sufficient independent information for the consideration of my application. 11 At the hearing of the appeal before me the appellant did not supplement her grounds of appeal with additional oral submissions. CONSIDERATION Ground 1 12 There is no evidence to support the allegation that the Tribunal misunderstood any of the applicant's claims or failed to comply with the provision of s 91R of the Act. The Federal Magistrate in her reasons correctly found that the Tribunal's rejection of the appellant's claims was a result of the Tribunal's finding that the appellant lacked credibility [14]. These are findings of fact and as such are not susceptible to judicial review: Re Minister for Immigration and Multicultural Affairs; ex parte Appellant S20/2002 (2003) 77 ALJR 1165. 13 An allegation of bias involves personal fault on the part of the decision maker. Such an allegation must be distinctly made and clearly proven: Minister for Immigration and Multicultural Affairs v Jia Le Geng (2001) 205 CLR 507 at [127]. The applicant has not identified any materials or evidence to show how the Tribunal has been biased. The first ground of appeal would seem to be, on the face of it, an attempt to review the decision on its merits, which is not permissible. The first ground of appeal is not made out. Ground 2 14 Her Honour noted that the Tribunal did send a letter outlining the Tribunal's concerns over the inconsistencies between the information contained in the appellant's application and her oral evidence, in compliance with s 424A of the Act: [15]-[16]. The appellant has not articulated any reason why this finding was wrong and none is evident. There is no relevant error in the Federal Magistrate's decision. 15 While the Tribunal was required to give its reasons for its decision, it was not required to give reasons for "each step in its prospective reasoning process": SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]. The Tribunal's findings were properly open to it on the materials and evidence before it: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67]; Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9;and W148/00A v Minister for Immigration and Multicultural Affairs (2001)ALR 185 703 at [64] – [69]. 16 This ground of appeal is rejected. Ground 3 17 The third ground of appeal asserts that the Tribunal failed to refer to sufficient independent information in considering the appellants application. The Tribunal in its decision did in fact refer to independent evidence. This ground also is not particularised and no attempt was made by the appellant to explain what she meant by "sufficient independent information". There is no evidence that indicates that the appellant provided the Tribunal with any additional independent information which was ignored. This ground also fails. 18 I can find no error in the reasoning or conclusions of the Tribunal or the Federal Magistrate. 19 The appeal should be dismissed. The appellant should pay the first respondent's costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 4 March 2008 The Appellant appeared in person: Counsel for the Respondent: Ms B Nolan Solicitor for the Respondent: Sparke Helmore Date of Hearing: 4 March 2008 Date of Judgment: 4 March 2008