SZKOA v Minister for Immigration & Citizenship [2008] FCA 862

FEDERAL COURT OF AUSTRALIA

SZKOA v Minister for Immigration & Citizenship [2008] FCA 862

Migration Act 1958 (Cth) s 424A SZKOA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 360 OF 2008

BUCHANAN J

10 JUNE 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 360 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKOA

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BUCHANAN J

DATE OF ORDER: 10 JUNE 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

The appeal is 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 360 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKOA

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BUCHANAN J

DATE: 10 JUNE 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT BUCHANAN J: 1 This appellant is a citizen of the People's Republic of China who arrived in Australia on 25 June 2006 and applied for a Protection (Class XA) visa on 8 August 2006. 2 On 29 September 2006 a delegate of the Minister refused the application for a protection visa because he had not been persuaded that the appellant, who claimed to have been a deputy director of a neighbourhood committee, had a genuine well-founded fear of persecution. The appellant claimed to have protested the corrupt actions of fellow officials, to have been detained and beaten by police 'day and night', to have been held in a mental disease hospital and to have been threatened many times by authorities after petitioning the government to investigate the corrupt officials. The delegate found that no corroborative evidence had been provided to substantiate these claims and found the appellant's claims 'to be lacking in veracity and credibility'. 3 The appellant applied for a review of the delegate's decision to the Refugee Review Tribunal ('the RRT') on 3 November 2006. The appellant appeared before the RRT on 13 December 2006. Although he had appointed a registered migration agent to assist him in relation to the review before the RRT that representative did not attend the RRT hearing. 4 Material on the Department's files indicated that the appellant had come to Australia on a business visa. He was sponsored by an officer of Australia-China Developments Centre (an approved sponsor) 'to undertake business research and learning visit'. His application for the business visa gave his employer as an investment company where he had worked for over three years. In various respects the information in the application for a protection visa was inconsistent with information contained in the earlier application for a business visa. At the hearing on 13 December 2006 the appellant denied all responsibility for the information supplied in connection with the application for a business visa, even though he had signed it. He said the business visa was organised for him by a friend in the investment company, he had never worked for that company and did not know anything about it. 5 Following the hearing these matters were again put to the appellant in writing in a letter from the RRT dated 30 January 2007. He was advised that this information might be a basis for refusing his claims in accordance with s 424A of the Migration Act 1958 (Cth). The appellant replied, again, resiling from any information in the application for a business visa and adhering to his claims made in connection with his application for a protection visa. 6 It is not necessary to discuss all the factual inconsistencies to which the RRT referred in its decision. There were a series of contradictions between the two applications. Certain responses to the RRT were themselves contradicted by the material the appellant relied upon. The RRT concluded as follows: 'The only conclusion that the Tribunal can draw from the contradictory information provided by the applicant and his various denials of his involvement in the submission of the 456 information and the corroborative evidence of his bio-data is that the applicant is not a witness of truth and a person, therefore, of no credibility. The Tribunal does not accept as truthful any of the comments provided by the applicant pursuant to s.424A of the Act. The Tribunal does not accept his total denial that the submitted the information contained in the Business visa application made by him in order to visit Australia having being sponsored by an Australian government-approved organization. As the Tribunal does not find the applicant to be a credible or truthful witness and the Tribunal, therefore, as a corollary it does not accept his claims that he has fled China (PRC) because of a history of well-founded and convention-related persecution and torture by the China (PRC) authorities and persons involved with them which was induced by his anti-corruption activities. The tribunal gives no weight to any of the documents submitted by the applicant which purport to prove these claims. The Tribunal does not accept that the applicant was ever mistreated by the authorities at any stage.' 7 By a decision handed down on 29 March 2007 the RRT affirmed the decision of the delegate. 8 However, on 21 June 2007, the decision was set aside by consent by the Federal Magistrates Court of Australia ('the FMCA'). The order of the FMCA notes the following: 'The First Respondent concedes that the decision of the Refugee Review Tribunal is affected by jurisdictional error in that it did not comply with its obligation to put adverse information relied upon as part of the reason for the decision to the Applicant for comment, in accordance with s424A(1) of the Migration Act 1958 (Cth), having regard to the Full Court of the Federal Court decision in SZEEU v MMIA [2006] FCAFC 2.' 9 The application for review to the RRT was therefore remitted to it for further consideration. On 11 July 2007 the RRT wrote to the appellant inviting him to submit any further documents or written arguments that he wished in support of his application for review. On 30 July 2007 the RRT wrote again drawing the appellant's attention to further material in accordance with s 424A of the Act. Another oral hearing was held on 20 August 2007. At the second hearing, although there was some discussion of the inconsistencies in the two visa applications, attention was concentrated on the appellant's claims in support of a protection visa. 10 On 4 September 2007 the RRT (constituted by a different member) handed down a further decision affirming the delegate's decision not to grant a protection visa. The second decision of the RRT gives a detailed account of the hearing which took place on 20 August 2007 including discussion by the RRT with the appellant of concerns which it had about his evidence. In its 'Findings and Reasons' the RRT made the following observation: 'The Tribunal found the applicant to be a witness who completely lacked credibility. The Tribunal found the applicant to be evasive and non-responsive. The applicant appears to have memorised his statement and to have difficulty answering questions relating to the issues not addressed in the statement. On many occasions the Tribunal had to repeat its question several times to elicit a response from the applicant and often such responses failed to address the issues raised by the Tribunal.' 11 It then specified a number of specific concerns about the appellant's evidence which caused it to question the veracity of that evidence and said: 'For these reasons, and the Tribunal's finding about the applicant's general lack of credibility apparent from the applicant's evasiveness and non-responsiveness to Tribunal's questions, the Tribunal finds that the applicant has been untruthful in his claims to the Tribunal. The Tribunal rejects the applicant's claims.' finally concluding: 'After considering the applicant's claims individually and on a cumulative basis, the Tribunal finds that if the applicant returns to China nor [sic] or in the reasonably foreseeable future, there is no real chance that he will be persecuted for the reason of his political opinion, membership of a particular social group or for any other Convention reason.' 12 The appellant made an application for judicial review to the FMCA in which he alleged that the RRT had committed an error of law and had denied him natural justice. The FMCA found that the alleged errors of law represented challenges to factual findings and that there was no apparent basis for the claim that the appellant had been denied natural justice. Accordingly, the FMCA found that no jurisdictional error had been established and that the decision of the RRT was, under the Act, protected from challenge. On 25 February 2008 the application for judicial review was dismissed (SZKOA v Minister for Immigration & Anor [2008] FMCA 179). 13 On 17 March 2008 the appellant filed the present appeal in this Court from the judgment of the FMCA. The grounds of appeal, in substance, repeat the grounds of the application for judicial review before the FMCA. In effect they contend for a different outcome but no specific error is identified in the reasoning of the FMCA. 14 The appellant did not, as directed, file any written submissions in support of his appeal. At the hearing of the appeal he read from a prepared statement a series of contentions to the same effect as the contentions considered, and rejected, by the FMCA. In particular he argued that the RRT had breached the requirements of s 424A of the Migration Act 1958 (Cth) because it failed to inform him in writing of information which might be used to decide his application for review before the RRT adversely to him. The contentions did not give sufficient attention to the exceptions to the general rule in s 424A expressed in s 424A(3) as follows: '(3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information.' 15 There is no substance in the appellant's contentions. The RRT's rejection of his factual claims, and its conclusion that he was not to be believed, are not open to review in this Court, or in the FMCA, unless some jurisdictional error is identified or is apparent. None has been identified. None was apparent to the FMCA. None is apparent to me. It follows that no error has been established, or appears, in the decision of the FMCA and the appeal must be dismissed. It is appropriate to dismiss it 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 Buchanan.