SZLYQ v Minister for Immigration & Citizenship [2008] FCA 1207

FEDERAL COURT OF AUSTRALIA

SZLYQ v Minister for Immigration & Citizenship [2008] FCA 1207

SZLYQ v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 553 of 2008

JESSUP J

4 AUGUST 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 553 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLYQ

Appellant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: JESSUP J DATE OF ORDER: 4 AUGUST 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the costs of the first respondent, fixed in the sum of $2,600. 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 553 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLYQ

Appellant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: JESSUP J

DATE: 4 AUGUST 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court given on 1 April 2008 dismissing an application by the appellant for an order that the respondents show cause why a remedy should not be granted in the exercise of that court's jurisdiction under s 476 of the Migration Act 1958 (Cth) ("the Act") in relation to a decision by the Refugee Review Tribunal ("the Tribunal"), signed on 11 December 2007 and handed down on 3 January 2008. In that decision, the Tribunal affirmed an earlier decision of a delegate of the respondent Minister not to grant a Protection (Class XA) Visa to the appellant pursuant to the Act. The second respondent, the Tribunal, has filed a submitting appearance. 2 The appellant is a citizen of China who arrived in Australia on a false Singaporean passport on 5 May 2007. On 18 June 2007, she lodged an application for a protection visa, claiming to have been targeted by the Public Security Bureau in China as a leader of an anti-government movement relating to farmers who had lost their land. She also claims to have been involved in protests against corrupt officials who had sold farmland used by farmers for growing crops. 3 In her application in the Federal Magistrates Court, the appellant relied upon the following grounds: 1. There was an error of law in the Tribunal's decision constituting a jurisdictional error; and 2. There was procedural error in the Tribunal's decision constituting an absence of natural justice. The appellant provided particulars which appear not to have discriminated as between the two grounds referred to. In those particulars, she asserted that the Tribunal had assessed her credibility incorrectly, that it had made its finding "simply based on its unwarranted assumption", that it had "failed take any genuine attempt to consider my claims properly and fairly" and that it had failed to comply with its obligation under s 424A(1) of the Act. In his reasons for judgment handed down on 1 April 2008, the Federal Magistrate dealt with each of these grounds. 4 Taking the alleged error of law in ground 1 to refer to what was said to be a failure to comply with s 424A, his Honour held that there had been no failure on the Tribunal's part to comply with that section. I need say nothing further about that, because his Honour's conclusion in this regard is not challenged on appeal. 5 Dealing with the allegation of an absence of natural justice, referred to in ground 2 of the application before him, the Federal Magistrate observed that, although there had been no suggestion of bias on the part of the Tribunal member, so much of the appellant's particulars as alleged that the Tribunal had failed to make any genuine attempt to consider her claims properly and fairly might on one view be regarded as an allegation of bias. His Honour held that there was no evidence that would indicate bias, either actual or apprehended, observing in this respect that the allegation was unparticularised. His Honour observed, correctly in my respectful view, that the gravamen of the appellant's complaint was that the Tribunal had erred in its adverse assessment of her credibility, the result of which was that the delegate's decision was affirmed. 6 In her Notice of Appeal in this court, the appellant relies upon the following grounds: 1. Refugee Review Tribunal had bias against me and did not make fair decision for my application. 2. I clarify all my points at the hearing of the Federal Magistrates Court, but the Judge did not give me a chance to provide more document. The Judge refused my application on my hearing date. It is not fair. I was persecuted in China. I will be put in jail if I return to China. 3. I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court. 7 As the Federal Magistrate observed, no explicit allegation of bias against the Tribunal was made by the appellant at that level. That would, of itself, be sufficient to give me cause to pause before allowing the allegation to be aired on this appeal. To allege bias against a Tribunal is a serious matter, and I would, in the normal course, have required to be persuaded that an allegation of this kind should be raised for the first time on appeal. However, as it happened, probably because of his Honour's generous reading of the appellant's originating application, the Federal Magistrate was prepared to consider an aspect of the appellant's case within the kind of jurisprudential framework that would normally be recognised as an allegation of bias, and he dealt with that allegation concisely and, if I may say so with respect, unobjectionably. I can see no error in the way he did so. Nothing which has been put on appeal by the appellant persuades me otherwise. 8 In her second ground, the appellant implies that she had sought additional time at the hearing before the Federal Magistrate in order to provide more documents. As counsel for the Minister has directly pointed out, if the point of providing those documents was to strengthen her evidentiary case to be held to be a refugee, that was not a question that was before the Federal Magistrate. As it happens, however, in her submissions before me this afternoon, the appellant has made it clear that she was referring not to the Federal Magistrate but to the Tribunal in her second ground of appeal. 9 The appellant's complaint, in relevant respects, is linked to a short passage in an affidavit by her, filed with the Notice of Appeal but undated. In that passage, the appellant said that the Judge did not consider all the information provided at the hearing. In the submissions made today, she elaborated upon that at my invitation and made it clear that it was certain newspapers, the absence of which was commented upon by the Tribunal, which she should have been given additional time to provide. In this regard, the appellant was referring to a section of the Tribunal's decision in which it adverted to evidence given by the appellant that she had made 10,000 copies of letters protesting about the way in which land had been confiscated and the lack of protection which the farmers were getting from the authorities, and in effect canvassing for support for a campaigned opposition to the confiscation of land. Of that subject, the Tribunal said: Asked whether the fact that she made the ten thousand copies of letters and that she went into hiding was ever reported in newspapers, the applicant replied that it was not. Asked if it was reported by anyone, the applicant replied that because government officials connive with each other they would not want it leaked. The Tribunal indicated the fact someone would not want something leaked does not necessarily stop it from being reported. The applicant replied that no matter whether the police were at the village, or from a county or city level, she believed that they were all in the 'same glove'. She said that she wrote letters but they did not receive any feedback and that there is only one broadcasting station in Fuqing city. Asked why it could not have been reported in a newspaper, the applicant replied because they only have this broadcasting station. When the Tribunal sought confirmation that Fuqing city did not have a newspaper, the applicant replied that there was not before going on to say there was only the Fuqing Newspaper and the broadcasting station, and the newspaper was only for government achievements and tourist information. It is quite clear from this passage that the proposition advanced by the appellant before the Tribunal was that her letter-writing campaign was not reported in the press because there was no relevant newspaper which dealt with such subjects or was prepared to deal with them. It was never her case, it seems, that her protests and campaign were reported in the newspapers but that she needed an opportunity to bring copies of the relevant newspapers to Australia and present them to the Tribunal. I would add to this both that nothing in the written decision of the Tribunal gives any suggestion that the appellant sought and was refused additional time and that nothing in the reasons of the Federal Magistrate refers to the subject at all. In the circumstances, the second ground of appeal must be rejected. 10 The third ground of appeal is, in effect, a compendium of a general sense of disquiet which the appellant clearly has as to the outcome of the hearing before the Federal Magistrates Court, but is not supported, and was not supported in submissions in this court, by any demonstration that the Federal Magistrate was in error in any presently relevant respect. 11 Having read the decision of the Tribunal and the reasons for judgment of the Federal Magistrate, and having heard the appellant's submissions this afternoon, I am satisfied that the Federal Magistrate disposed of her application for judicial review without error. It follows that this appeal will be dismissed. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.