SZNFP v Minister for Immigration & Citizenship [2009] FCA 918

REASONS FOR JUDGMENT 1 The appellant is a citizen of China. He arrived in Australia on or about 11 July 2008, and, on 14 July 2008 he lodged an application for a Protection (Class XA) visa. The background of his claim is set out in his application. 2 The appellant claims that he left China because of a well-founded fear of serious harm as a result of actual or imputed political opinion. On 8 September 2008, a delegate of the first respondent refused to grant to the appellant a protection visa. On 9 October 2008, he sought from the Refugee Review Tribunal (the Tribunal), a review of the delegate's decision. He was invited to appear and he did appear before the Tribunal, and he submitted documents to the Tribunal for its consideration. 3 On 12 January 2009, the Tribunal affirmed the decision of the delegate. The Tribunal accepted he was a citizen of China, but otherwise rejected the claims of the appellant. It held that he was not a credible witness and that his claims had been concocted. Further, amongst its findings, it said that the issuance of a passport to the appellant was inconsistent with his claim that he was of interest to Chinese authorities, and that the fact he did not depart China until nine months after the passport had been issued to him was inconsistent with his claim that he feared persecution in China. 4 The appellant appealed to the Federal Magistrates Court. There, he argued that the Tribunal had contravened, amongst other sections, s 424A of the Migration Act 1958 (Cth) (the Act). He also argued that the Tribunal decision was not fair and there was apprehended bias. 5 The appeal to the Federal Court from the Federal Magistrates Court decision is on two grounds. The first is that the Federal Magistrate erred in law, and the second is that the Federal Magistrate was wrong in finding that the Refugee Review Tribunal acted properly in its findings. The appellant gave extensive particulars in 10 numbered paragraphs. The appellant's submissions to this Court today essentially focus on three aspects. The first is a general complaint that the Tribunal was very unfair and did not give him a fair chance. The second is that the assessment by the Tribunal was in breach of s 424A(1) of the Act. 6 That subsection provides: 424A Information and invitation given in writing by Tribunal (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. … 7 The third basis on which the appellant asks this Court to interfere is an appeal against the finding of credibility by the Tribunal. 8 The appellant told this Court that the Tribunal did not believe him, or the papers he submitted. He further stated that the Tribunal did not want to check on his claims regarding business involving his brother-in-law, or accept the papers he presented. In short, his complaint is expressed in his submission to me, "The reason they give is they didn't believe me. Do you think that is fair?" 9 In respect of the finding by the Tribunal to which I have earlier referred, that the issuance of a passport to the appellant was inconsistent with his claim that he was of interest to the Chinese authorities, the appellant made the submission, "Does that mean, if one leaves China with your own passport, you can't become a refugee?" 10 There is, I have to say, something of a "Catch 22" nature of that finding, but nonetheless, in my judgment, it can properly be regarded by the Tribunal as bearing on the question of the existence of a well-founded fear of persecution. It is not determinative, and it certainly does not compel the conclusion that if one is using one's own passport, validly issued, then one can never become a refugee, or have refugee status recognised. 11 However those submissions, generally, indicate that there is a misunderstanding by the appellant of what, first of all, the Federal Magistrate can do, and, secondly, what the Federal Court can do, when the Tribunal has made a decision based on credibility. Unless that finding is perverse, the finding of credibility is a finding of fact and it is impermissible for either the Federal Magistrates Court or the Federal Court of Australia to engage in merits review. The complaint that the appellant has submitted to this Court is essentially a complaint that it is unfair for the Tribunal not to believe him. That is a complaint inviting merits review and it is beyond the competence of this Court. 12 On those grounds which touch on the question of possible jurisdictional error, the only one realistically argued within that description is the complaint that the Tribunal acted in breach of s 424A(1) of the Act. 13 As to that subsection, the reasons of the Tribunal demonstrate that the Tribunal relied on three categories of information or aspects of the material before it. The first of that material is information contained within the appellant's protection visa application. In that regard, s 424A(3)(b) and (ba) provide: (3) This section does not apply to information: … (b) that the applicant gave for the purpose of the application for review; or (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or … 14 The second category of information which, from its reasons, the Tribunal relied on, was independent country information. That information falls within the exception contained in s 424A(3)(a) of the Act, which provides: (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 … 15 The third body of information on which the Tribunal relied is what it asserts are inconsistencies in the appellant's evidence and the rejection of his evidence. Neither of these categories of material enlivens s 424A of the Act: see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, at [18]. 16 For those reasons, s 424A of the Act did not apply to the appellant and, in my judgment, the Federal Magistrate was correct in his finding that s 424A of the Act was not engaged. 17 I know it is difficult for appellants to understand that it is not generally possible for a Federal Court to overcome an adverse finding by the Tribunal that the Tribunal did not believe the appellant or his material, but the law is plain. The Tribunal is given the function of making findings of fact, including whether to accept or reject claims. That process is a fact-finding process, and it is not for the Court to substitute its own view of the merits of the appellant's claims for that of the Tribunal. 18 For the above reasons, this appeal has to be dismissed. 19 Ordinarily, an unsuccessful appellant is ordered to pay the costs of the first respondent. Those costs would be taxed, that is to say, calculated by a process. The first respondent seeks that, to reduce the costs, I fix the costs and thus avoid taxation and the costs of it. The amount claimed for costs is, in my judgment, appropriate. 20 In those circumstances, the orders of the Court are as follows: (1) The appeal is dismissed; (2) The appellant pay the costs of the first respondent, of and incidental to the appeal, fixed in the sum of $2,555.00. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.