SZNDR v Minister for Immigration and Citizenship [2009] FCA 857

FEDERAL COURT OF AUSTRALIA

SZNDR v Minister for Immigration and Citizenship [2009] FCA 857

SZNDR v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 433 of 2009

MANSFIELD J

10 AUGUST 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION NSD 433 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZNDR

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: MANSFIELD J

DATE OF ORDER: 10 AUGUST 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay to the first respondent costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION NSD 433 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZNDR

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: MANSFIELD J

DATE: 10 AUGUST 2009

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant is a citizen of China. He is now aged 40. He came to Australia on a visitor visa on 15 July 2008 and promptly applied for a protection visa under the Migration Act 1958 (Cth) (the Act). 2 To be eligible for a protection visa, the decision maker, ultimately the Refugee Review Tribunal (the Tribunal), must be satisfied that the appellant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or his political opinion, and is unwilling or unable, owing to such fear, to return to China: Article 1A(2) of the Convention Relating to the Status of Refugees, as amended by the Protocol Relating to the Status of Refugees. The appellant claimed to have a well-founded fear of persecution by reason of his political opinion, or arguably by reason of his membership of a particular social group. 3 In his visa application, the appellant said he had worked as a self-employed taxi driver, and had organised the distribution of leaflets, and had organised and participated in a demonstration complaining about police harassment and about government fees imposed on taxi drivers. He claimed to have been sentenced to two years' imprisonment, because he was the one who organised the demonstration. He also claimed that, after his release from prison, he continued to be visited by the police without warning on a number of occasions, and he had trouble obtaining work and making a living. He said his parents assisted him in coming to Australia. 4 The appellant was interviewed by the delegate of the Minister who made the initial decision. The delegate did not believe his claims. In particular, the delegate noted that, contrary to the appellant's claims in his visa application, he told the delegate that he did not organise any demonstration, but merely distributed leaflets, and that he had been arrested and imprisoned for assaulting a police officer. He was asked for, but did not provide, any documentary material in support of his claims. He also told the delegate that, after his release from prison, he had lived at the same address for some years and he had left China on a passport in his own name. That indicated to the delegate that the appellant was not then of any particular interest to the Chinese authorities. The delegate was not satisfied that the appellant had a genuine fear of harm if he were to return to China, or that there is a real chance of him being harmed in the foreseeable future for any Convention-related reason if he returns there. So the delegate refused his application for a protection visa. 5 That decision was affirmed on review by the Tribunal, by a decision made on 3 December 2008. The appellant was given a hearing before the Tribunal before it made its decision. Before the Tribunal, the appellant repeated the claim that he had organised the demonstration and he said he was arrested and charged for gathering people for a demonstration, for being against the society, and for making false statements. He said his arrest occurred in about late November 2004 or early December 2004. On the occasion of that evidence, the appellant also said that he had been charged with assaulting a police officer. He had apparently been released from prison on about 13 December 2006. 6 The Tribunal also did not believe the appellant's claims. The Tribunal thought that his story was concocted, based loosely on the successful application of another protection visa applicant. The appellant had told the Tribunal that he and that other applicant had been in jail in China together, but that he had made no contact with that other person since he had been in Australia, even though his father and the father of that other applicant had been in contact with each other. The Tribunal also noted that the appellant had claimed to have been called in several times for re-education after he had been released from prison, but that he had made that claim only just before the very end of the hearing before the Tribunal, and not earlier when he had been asked why he feared returning to China. The Tribunal also took into account that the appellant's passport was issued on 21 February 2005, that is, whilst he claimed to have been in jail. It did not accept that his father had somehow got him a passport during the period of his imprisonment, so it was not satisfied that the appellant had been imprisoned as he had claimed. 7 From that decision, the appellant applied to the Federal Magistrates Court to set aside the decision of the Tribunal. On its face, his application was based on the claim that the Tribunal had failed to comply with s 425 of the Act by not according him procedural fairness, because he was not given a specific opportunity "to give evidence or make submissions on determinative issues". 8 The Amended Application asserted in paragraph 1(e) as follows: At the hearing the Tribunal did not warn or say anything to the applicant to indicate that it believed the applicant had studied the application of Tie Zhu Zhang or that it believed he had concocted his story on the basis of that application. The Tribunal also did not indicate it did not believe that the applicant had no contact with Tie Zhu Zhang in Australia, if they were colleagues and shared goal time, and particularly if their fathers had talked since the applicant's arrival. 9 The Federal Magistrate found, after consideration of the Tribunal's reasons and the transcript of the hearing before the Tribunal, that the Tribunal had explored the appellant's claims with him at the hearing and had put matters of concern to the appellant about the quality of his evidence. That transcript also showed that the Tribunal had indicated to the appellant that his credibility was of concern, including that he had claimed only at the very end of the hearing to have undergone re-education. As to the matters set out in ground 1(e) of the Amended Application, the Federal Magistrate concluded that the Tribunal had drawn those matters to the attention of the appellant. The Federal Magistrate said at paragraph [48] of her reasons: A fair reading of the transcript of the Tribunal hearing makes clear that the Tribunal put its concerns to the Applicant about his evidence in relation to his friend. These findings were open to the Tribunal on the evidence before it and for the reasons it gave. The complaints made by the Applicant relate to the Tribunal's analysis and evaluation of the Applicant's evidence. These are the reasoning and thought processes of the Tribunal. 10 The Federal Magistrate therefore concluded that the appellant had been provided with an opportunity to give evidence and present arguments in accordance with s 425 of the Act. 11 The Federal Magistrate was also required to consider the two additional documents which the appellant sought to prove before the Federal Magistrates Court. Those documents were a copy of a summons, and a copy of a criminal sentencing judgment. The appellant claimed before the Federal Magistrate that he had not had an opportunity to present them to the Tribunal. Then, upon further questioning, he told the Federal Magistrate that he was uncertain whether he was supposed to have produced such documents to the Federal Magistrates Court or to the Tribunal. He gave evidence and was cross examined about that claim. 12 The Federal Magistrate rejected that assertion by him. Her Honour did not accept that the appellant had been uncertain before the Tribunal whether he was required to, or permitted to, produce such documents to the Tribunal. She pointed out that the Tribunal had given the appellant the opportunity to tell the Tribunal about anything else to be taken into account, but he did not mention those documents to the Tribunal, even though he knew they were important. He had also not told the delegate of the Minister about them, and did not ask for time from the delegate of the Minister, or from the Tribunal, to get those documents from China to present them to either of those entities. 13 Consequently, the Federal Magistrate also rejected the appellant's complaint that he had not been given an opportunity to produce those documents to the Tribunal. 14 This is an appeal from the decision of the Federal Magistrate. The grounds of appeal are very broadly stated and do not appear to indicate a particular error on the part of the Federal Magistrate. They are as follows: 1. Refugee Review Tribunal had bias against me and did not make fair decision for my application. 2. I clarify my points at the hearing of the Federal Magistrates Court that RRT did not give me time to provide evidences. The Judge refused my application on my hearing date. It is not fair. 3. I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court. 15 It is necessary to consider those grounds of appeal in sequence. 16 The first ground of appeal asserts bias on the part of the Tribunal. That matter was not raised before the Federal Magistrate, and so her Honour's failure to consider that matter cannot amount to error on the part of the Federal Magistrate. That in itself is sufficient to dispose of that ground of appeal. This is an appeal from the decision of the Federal Magistrates Court and not from the Tribunal. In any event, there is simply nothing identified in the submissions of the appellant which could support that claim. There is nothing which has been pointed out to me, or from my reading of the materials in the Appeal Book, which suggests that the Tribunal did not approach its task with an open mind: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507. Apart from the complaint of procedural fairness made to the Federal Magistrate, much of what the appellant said about the Tribunal's reasons indicates that he was really seeking to complain about the merits of the decision of the Tribunal, but it is not the role of the Federal Magistrates Court simply to review the merits of such decisions: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. However, principally I reject that ground of appeal because it was not raised before the Federal Magistrates Court at all and so cannot show error by the Federal Magistrate: SZKMS v Minister for Immigration & Citizenship [2008] FCA 499. 17 It is convenient to deal with grounds two and three in the Notice of Appeal together. It is also convenient to note here that the appellant, in oral submissions, made a claim that he was not given an opportunity to put to the Federal Magistrates Court the submissions which he wished to put. That may be bound up with his complaint in his Notice of Appeal that his application was not considered reasonably by the Federal Magistrate. 18 To deal with those grounds of appeal, it is not necessary to explore the extent of the obligation under s 425 of the Act. In my judgment, no error has been shown by the Federal Magistrate in her consideration of the Tribunal's reasons or of the transcript before the Tribunal. Her Honour considered the Tribunal's reasons and the transcript carefully and thoroughly. I do not think there is any error on the part of the Federal Magistrate in concluding, as she did, that the appellant had been given an opportunity to present such material, and to make such submissions, as he wished. 19 I am also not persuaded that there was any error on the part of the Federal Magistrate in relation to the conduct of that application. In particular, nothing has been identified to indicate that the Federal Magistrate cut the appellant short from making such submissions as he wished to make, either about the two new documents which he wished to present or about what had happened before the Tribunal. Nor did her Honour curtail the appellant at all about the evidence he wished to give about those two documents. In fact, the contrary is the case. Her Honour was at pains to give the appellant an opportunity to develop what he wished to develop before the Federal Magistrate. After identifying the existence of those two documents, and the use to which the appellant wished to present them, her Honour was careful to find out why the appellant wanted to use them and why he had not used them before the Tribunal. After he had said what he wanted to say about them in evidence, he was asked whether he wished to give any other evidence about those documents or his complaint about the Tribunal hearing. After his evidence had been completed, he was asked again whether there was anything more he wished to say about his complaint that the Tribunal had not given him an opportunity to present those documents to it. 20 The Federal Magistrate then also drew to the appellant's attention the particular matters he had raised in his application to the Federal Magistrates Court. In particular, her Honour drew to his attention the issue as to whether he had had any contact with the other visa applicant, in the particular circumstances, and asked him whether he wished to say anything further about that aspect of the matter. On two further occasions, towards the end of the hearing, he was asked whether he wished to say anything further about particular complaints, or in support of his application to the Federal Magistrates Court, or generally. From the transcript, it is simply incorrect that the appellant was not given an opportunity to put to the Federal Magistrate what he wished to say about the Tribunal's reasons or indeed more generally. 21 I have therefore come to the view that no error has been shown on the part of the Federal Magistrate in considering the application before her. I have also come to the view that the Federal Magistrate correctly concluded that the decision of the Tribunal was reached without the Tribunal failing to provide the appellant with the opportunity to give evidence and to make submissions in accordance with s 425 of the Act, or that the Tribunal's decision was otherwise made by legal error so as to warrant it being set aside. 22 This appeal must therefore be dismissed with costs. I so order. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.