FEDERAL COURT OF AUSTRALIA SZMYG v Minister for Immigration and Citizenship [2009] FCA 946 Migration Act 1958 (Cth) ss 424A, 425 Migration Regulations (1994) SZMYG v Minister for Immigration & Anor (No 2) [2009] FMCA 503 approved SZMYG v Minister for Immigration [2009] FMCA 52 considered SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 applied SZMYG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL NSD 696 of 2009 LOGAN J 19 AUGUST 2009 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 696 of 2009 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZMYG Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: LOGAN J DATE OF ORDER: 19 AUGUST 2009 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The Appellant is to pay the First Respondent's costs of and incidental to the appeal, fixed in the amount of $2,818. 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 696 of 2009 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZMYG Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: LOGAN J DATE: 19 AUGUST 2009 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The Appellant is a citizen of the People's Republic of China. She came to Australia under a business visa in February last year. The following month, on 27 March, she made application to the Department of Immigration and Citizenship for that class of visa under the Migration Act 1958 (Cth) (Migration Act) known as a protection visa. After an interview in June 2008 with a delegate of the Minister for Immigration and Citizenship (Minister), that delegate later that same month refused the Appellant's protection visa application. As was her right under the Migration Act, the Appellant sought the review of that ministerial delegate's decision on the merits by the Refugee Review Tribunal (Tribunal). 2 The Tribunal offered and the Appellant accepted the opportunity of an oral hearing in respect of the review application. That occurred in September 2008. The affidavit annexed to the protection visa application launched by the Appellant put forward a claim for such a visa on the basis of adherence to the Falun Gong movement and a fear of persecution based on that adherence. The Appellant gave oral evidence to the Tribunal at the hearing in September 2008. At that hearing she made reference to the abuse of her by her husband and also to her experience with China's one child policy. This was information which had not been put forward in the affidavit in support of the visa application. 3 In the result, that initial absence of reference to this information proved influential in conclusions which the Tribunal reached as to the Appellant's overall credibility, as the Tribunal's reasons disclose. Also influential was a view formed by the Tribunal on the basis of questions asked in the course of the hearing as to the Appellant's knowledge of even the rudiments of bases of the Falun Gong movement. Also evidentially influential, having regard to the Tribunal's reasons, was an inconsistency between the Appellant's having stated that she had seen from a distance the Falun Gong Master Li Hongzhi in 1999, and other independent evidence which the Tribunal had which placed Master Li in exile from China from 1997. 4 It is also evident from the Tribunal's reasons that a conclusion as to an absence of credibility with respect to the claim advanced for a protection visa was influenced by the Tribunal's assessment of an inherent unlikelihood of her being permitted to travel to Australia for business reasons on a Chinese passport in the face of claimed People's Security Bureau scrutiny of her Falun Gong activities. 5 In the result, for reasons which the Tribunal furnished to the Appellant under cover of a letter dated 28 October 2008, the Tribunal decided to affirm the decision not to grant the Appellant a protection visa. It should be added that, in so doing, the Tribunal did not accept the claimed domestic violence. Further, the Tribunal expressly took into account the claim in respect of the one child policy. There was no evidence before the Tribunal of any selective discriminatory application of that policy in relation to the Appellant based, for example, on her membership of a particular social group. The Appellant then sought the judicial review of the Tribunal's decision in the Federal Magistrates Court. 6 Having regard to the evidence which the Appellant had given to the Tribunal in respect of domestic violence, the Federal Magistrates Court, out of, it seems, an abundance of caution, and in the absence of the point having hitherto arisen, required the Minister, then, as now, the First Respondent, to show cause as to whether the proceedings in the Tribunal should be quashed on the basis that Div 1.5 of the Migration Regulations (1994), which makes particular provision in relation to domestic violence, had not been complied with. The Federal Magistrates Court then considered this issue, together with those which had been raised in the grounds specified in the judicial review application at a later date. 7 On 25 June 2009, the Federal Magistrates Court dismissed the application for judicial review: see SZMYG v Minister for Immigration & Anor (No 2) [2009] FMCA 503. It is from that decision that the Appellant appeals to this Court. There are three grounds of appeal. They are: (1) The tribunal member failed to consider carefully in relation to allegations of domestic violence and in relation to China's one child policy. (2) I was denied procedural fairness in connection with the making of the decision. (3) The tribunal does not amount to a proper basis for review in judicial review proceedings then [sic]. 8 I shall consider each of these grounds of appeal in turn. 9 Ground 1 does not, in terms, specify a ground of administrative law error, much less a failure on the part of the Federal Magistrates Court to find such an error. It is important to appreciate that in matters such as the present, the Court does not exercise original jurisdiction. There is a need for an Appellant to demonstrate error of law in the decision of the Federal Magistrates Court. I accept, though, that in respect of a person such as the Appellant, who is representing herself, and particularly in a case touching upon a claim for a protection visa, that a benign construction ought to be given to grounds of appeal, subject, of course, to ensuring that procedural fairness is given to the Minister, as active respondent, in meeting a ground so construed. 10 Approaching the matter in this way, one might regard ground 1 as advancing a case that the Federal Magistrates Court ought to have found that the Tribunal had failed to consider the basis upon which this particular Appellant had advanced her protection visa application; in other words, that the Tribunal had for such a reason failed to discharge its statutory function of considering afresh, and on the merits, the protection visa application as made and advanced. Even approaching ground 1 in this way, the difficulty is that it is patent, on the face of the Tribunal's reasons, that the Tribunal member has comprehensively engaged with, and assessed on the merits, the fullness of the claim for a protection visa which the Appellant advanced. 11 It may be, also, that ground 1 should be regarded as a complaint that the absence of care in the consideration of the Appellant's review application in respect of the domestic violence and one child policy elements advanced was indicative of unreasonable, in the administrative law sense, decision-making. I accept that unreasonableness in the reaching of a conclusion as to an absence of administrative satisfaction in respect of the basis for a protection visa application could amount to jurisdictional error. The difficulty, though, is that there is nothing irrational or illogical evident in the Tribunal's reasons in the reaching of a conclusion that the Tribunal was not satisfied that the Appellant was a person in respect of whom Australia owed a protection obligation. 12 That absence of satisfaction was, self-evidently from the Tribunal's reasons, grounded in findings in respect of the Appellant's credibility. Those findings are not inherently illogical or irrational, given the inconsistencies to which the Tribunal refers. It was all too evident, on the hearing of the appeal, that the Appellant was regretful as to an earlier non-disclosure of her claims in respect of domestic violence and the impact on her of the one-child policy. An applicant for a visa is entitled to advance his or her claim for such a visa in such manner as he or she wishes. If it later transpires that the advancing of a different or amplified claim gives a ministerial delegate or a tribunal pause for thought about an applicant's credibility, it does not follow that credibility findings based on inconsistency of account are susceptible to interference on judicial review. 13 There is nothing inherently improbable, as a matter of theory, in accepting that a wife subjected to domestic violence might find comfort, perhaps great comfort, in the following of a movement such as Falun Gong, or in the pursuit of particular religious beliefs. Neither, again as a matter of theory, is there anything improbable, inherently, in a claim for a protection visa coming to be grounded in a consequential persecution in another place on the basis of adherence to such a movement, or to a particular religion. The difficulty for the Appellant is that findings in respect of credibility in respect of such a chain of events are, par excellence, for an administrative decision-maker, such as the Tribunal. 14 The Federal Magistrates Court dealt with the question of whether there was any error, in the administrative law error sense, in respect of the factual conclusions reached by the Tribunal initially in an interlocutory judgment: SZYMG v Minister for Immigration [2009] FMCA 52. The court found no such error. Having considered that question afresh out of an abundance of caution, having regard to a benign construction of ground 1, I can see no error in the pre-emptory way in which the Federal Magistrates Court dealt with this subject. That is because the conclusions which the Tribunal reached were reasonably open. It is nothing to the point that others may have reached different views. It is especially nothing to the point that judicial officers may have reached different views, for that would impermissibly intrude into functions consigned under our law to officers of the executive branch. However, then, one approaches ground 1, there is no merit in it. 15 As to ground 2, there is an absence of particularity as to how procedural fairness was denied to the Appellant in the proceedings before the Tribunal, much less how there was any error on the part of the Federal Magistrates Court in dealing with such an issue. That court found there was no actual or apprehended bias evidenced in respect of the Tribunal proceedings. The only evidence of the course of proceedings before the Tribunal is to be found in the comprehensive recitation in the Tribunal's reasons of those proceedings. On behalf of the Minister, it was very properly put forward that if there were evidence of a failure to afford a hearing which was a meaningful hearing, a breach of s 425 of the Migration Act might be demonstrated. 16 The difficulty is there is no such breach evidenced. Further, there is no evidence of any hectoring or overly rigorous inquisition, such as might give pause for thought as to whether an apprehension of bias arose in respect of the member constituting the Tribunal, on the basis that nothing that an Appellant could say or do would change a preconception held by a Tribunal member. 17 Again very properly, the Minister's counsel, in effect, posed against the Minister whether what lay behind the allegation of a want of procedural fairness was non-compliance with a mandatory requirement found in s 424A of the Migration Act. It is evident, though, that the Tribunal did comply with that section and, indeed, perhaps went further than the strictness of that section would require having regard to what is expressed by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18] as in relation to the concept of "information". No error in that regard arises. 18 Even if one regards the ground as embracing, as a procedural fairness ground could, a failure to afford an opportunity to be heard, it is self evident that the Appellant was given such an opportunity and took advantage of it. I therefore dismiss ground 2. 19 Ground 3 is not, with respect to the Appellant, a meaningful ground of appeal, even approaching it in the benign way I have earlier described. At best it might be said, in my opinion, that the Tribunal had not truly considered the Appellant's visa application and that the Federal Magistrates Court should have so held. I have already decided, though, for reasons earlier given, that a meaningful opportunity was extended and that the Tribunal did comprehensively engage with the basis ultimately put forward by the Appellant for her protection visa application. I therefore dismiss ground 3. 20 It follows that the appeal must be dismissed. 21 I have considered the application in respect of costs. The Minister's application is that I ought to fix costs. The Appellant has, with respect, understandably, made reference to her limited means. That, in itself, is not a basis for resisting an exercise of discretion in the usual way in respect of costs. Further, the case did not seem to me to have the status of a test case on appeal. It is true that the Magistrate dealt with an interesting question in respect of the domestic violence provisions in the regulations which had a uniqueness about it but that aspect did not seem to be pressed in the appeal having regard to the grounds. Further, even if it were to be so regarded, the conclusions reached by the learned magistrate seem to me unremarkable. I respectfully agree with them. 22 It follows that costs ought to follow the event. 23 The question then becomes whether or not to fix them? Having regard to the contents of the affidavit of Jamie Dinihan which I grant leave to file and read and, in particular to paragraph 8, the sums there specified strike me as inherently reasonable. I make that observation even taking into account that their start point was a system of time costing in respect of which there are inducements to inefficiency. The end point though are amounts which, viewed in an absolute sense, strike me as reasonable. I certify that the preceding twenty (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 24 August 2009 Counsel for the Appellant: The Appellant appeared in person Solicitor for the Respondents: Clayton Utz Date of Hearing: 19 August 2009 Date of Judgment: 19 August 2009