SZMSH v Minister for Immigration & Citizenship [2009] FCA 974

FEDERAL COURT OF AUSTRALIA

SZMSH v Minister for Immigration & Citizenship [2009] FCA 974

SZMSH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 519 of 2009

JESSUP J

18 AUGUST 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 519 of 2009

GENERAL DIVISION

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMSH

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: JESSUP J

DATE OF ORDER: 18 AUGUST 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the costs of the respondent Minister.

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 NSD 519 of 2009

GENERAL DIVISION

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMSH

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: JESSUP J

DATE: 18 AUGUST 2009

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court of Australia given on 15 May 2009 dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 28 July 2008. The Tribunal affirmed an earlier decision of a delegate of the respondent minister on 31 March 2008 to refuse to grant the appellant a protection visa under the Migration Act 1958 (Cth) ("the Act"). 2 The appellant is a citizen of China who arrived in Australia on 2 January 2008 and applied for a protection visa with the Department of Immigration and Citizenship on 15 February 2008. She claimed that her land had been sold for minimal compensation by corrupt government officials, and that she had been involved in organising protests against the Communist regime which had resulted in her being beaten by the police and had been detained, mistreated, and tortured. 3 The Tribunal accepted that the appellant had been involved in some limited and low profile activities in order to seek compensation for the loss of her land. It also accepted that she had been detained for one month and fined. However, it was found that the appellant had been vague and deliberately evasive at the hearing to the point that the Tribunal could not be satisfied that she had had any significant role in the protests or, following her release, was of any further interest to the Chinese authorities. The Tribunal found that the appellant had embellished her claims in order to enhance her prospects of obtaining a protection visa. It concluded that there was no real chance that the appellant would be subject to harm if she returned to China. 4 In the Federal Magistrates Court, the appellant relied upon the following grounds: 1. The Tribunal's decision has included a reasonable apprehension of bias. 2. The Tribunal's finding is contradictory. 3. The Tribunal failed to comply with its obligations under sections 424A, 424AA, and or 425 of the Migration Act. 4. The Tribunal based its decision on nothing but an assumption. The Federal Magistrate undertook a lengthy and, it appears, comprehensive review of the decision and reasons of the Tribunal. There appears to be no aspect of the Tribunal's decision of the kind that might be relevant to the grounds then relied upon by the appellant which her Honour overlooked. Her Honour rejected all of the appellant's grounds, but, for reasons which shall presently appear, it is unnecessary for me to rehearse the terms in which she did so. 5 In her Notice of Appeal in this court filed on 2 June 2009, the appellant relied upon two grounds: (1) The Federal Magistrate erred in law. (2) The Federal Magistrates [sic] was wrong in finding that the Refugee Review Tribunal ("the Tribunal") acted properly in its findings. The appellant provided particulars of these grounds as follows: (1) The Tribunal failed to consider my claims impartially; and there is apprehended bias in the Tribunal's decision. (2) The Tribunal failed to comply with its obligations under s.424AA of the Act (3) The Tribunal failed to comply with its obligations under s.424A(1) of the Act (4) The Tribunal failed to consider evidences before it properly and fairly. (5) I have never ever agreed that my application has been assessed by the Tribunal fairly and carefully. 6 The appellant did not file a written outline of the submissions which she proposed to make in this appeal. In the circumstances, the only submissions which she made were those made orally before me this morning. It is difficult to find any correspondence between those submissions and the findings and reasons of the Federal Magistrate, or between those submissions and the Notice of Appeal. The latter aspect might not be a problem if there appeared to be a case worthy of this court's attention on the merits. However, the former aspect is a problem for the appellant, as the lack of correspondence between her present submissions and the treatment of the case by the Federal Magistrate carried the necessary consequence that the appellant's submissions were not concerned to identify any error on the part of her Honour. I pressed the appellant on this point, but she was unable to indicate to me any respect in which her Honour had erred, save perhaps for the implicit submission that her Honour ought to have found in the appellant's favour with respect to the two points now relied on and not then argued. 7 The appellant opened her submissions by informing me that she proposed to advance supplementary points, and I got the impression that she intended to advance also all the points and arguments which had been put by her at previous hearings. I made it clear to her that this was the first time any points or arguments had been put to this court and that this court's concern was with the question whether the Federal Magistrate had erred. This court is not a court of first instance judicial review of the Tribunal, and only in special circumstances should it embark upon a critical examination of the Tribunal's reasons in respects not previously advanced before the Federal Magistrate. In deciding whether to embark upon such an examination, the court will usually take into account a range of factors, principal amongst which is whether there is a satisfactory explanation for the points not having been argued below, and whether the points would have any reasonable prospect of succeeding if they were permitted to be argued. 8 I am disposed to consider the appellant's two points on their merits, because I consider that that is the least complicated way and, in the circumstances of this case, the more satisfactory way of disposing of them. As I understand the points now being raised by the appellant, it is first said that the Tribunal either exceeded or failed properly to take up its jurisdiction, by overlooking the impact which the admitted detention of the appellant might be expected to have had on her, and to continue to have on her were she to return to China. In this respect, the appellant pointed out that the Tribunal had found that once the appellant had served her time in detention and had been released, she was of no further interest to the communist authorities, and accordingly had no legitimate basis for fearing persecution if she were to return to her own country. The appellant strongly resisted the appropriateness of findings in those terms. She asserted here that the fact that she had been under detention, in effect, made her a marked woman over whom the authorities would be intent on maintaining a continuing surveillance. The difficulty with this submission is that it seeks to put in issue factual findings made by the Tribunal. Issues of this kind are the very things which are entrusted to the Tribunal to decide. As pointed out by counsel for the Minister, there are passages in the Tribunal's reasons which constitute findings on the very matters to which the appellant now says the Tribunal failed to give its attention. It did give those matters its attention, and it made findings which were adverse to the appellant. The matter having been dealt with by the Tribunal, factual contests of the kind which the appellant now seeks to raise would not have been available to her before the Federal Magistrate, whose task was limited to the question of determining whether the Tribunal had committed a jurisdictional error of some kind. 9 The second point which the appellant now seeks to raise may, despite what I have said earlier, be regarded as a re-articulation in a different form of a broad subject which she did agitate before the Federal Magistrate. This morning, the appellant said that, in looking at the evidence, the Tribunal used what she described as "its personal subjective imagination and opinion." Before the Federal Magistrate, the appellant alleged that the Tribunal was biased, and it may be that what she now raises is an element of that broad allegation. The difficulty appears to have arisen from the fact that, shortly before one of the Tribunal's hearings, the appellant made arrangements for evidence by telephone to be given by two of her friends from China. The Tribunal received that evidence, but formed the view, and expressed the conclusion in its reasons, that the witnesses in question had rehearsed their evidence so as to provide maximum assistance to the appellant's case. The appellant's point here is that the evidence of those witnesses did provide support for her case, and ought not to have been rejected by reference to what she described as the "subjective imagination" of the Tribunal member. The difficulty with this point is that the assessment of the credibility of witnesses is pre-eminently the task of the tribunal of fact in any adjudicative system. The Federal Magistrate would not have been in a position to second-guess the Tribunal in the assessment which it made of the credibility of these witnesses. 10 Her Honour dealt with the rehearsal point at some length. She set out extracts from the reasons of the Tribunal which revealed the basis upon which the Tribunal expressed the view that the witnesses had been rehearsed. Her Honour said that it was in the light of the concerns expressed by the Tribunal about the appellant's evidence that it found that the witnesses' evidence had been deliberately contrived with the collusion of the appellant. Notwithstanding that finding, as her Honour observed, the Tribunal was prepared to give those witnesses the benefit of the doubt to an extent, and it accepted their evidence in one respect while rejecting it in another. 11 The only question before her Honour, and the only question now, is whether the way the Tribunal approached the question or approached the matter provides a basis for a conclusion that it was biased in the legal sense. On this subject, the Federal Magistrate said: The applicant suggested that the Tribunal was biased or appeared to be biased from the perspective of the appropriately informed lay observer. However, when the Tribunal's reasons are considered in context as set out above, it is not apparent from the perspective of the appropriately informed lay observer that these reasons are such that it could be reasonably apprehended that the Tribunal member failed to approach its task with an open mind or a mind open to persuasion in the sense considered in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982. I invited the appellant to take me to any part of the reasons of the Federal Magistrate where an error or mistake by her Honour is apparent. That invitation was not accepted, and for my own part, I am disposed to agree with her Honour that the way that the Tribunal dealt with the evidence of the two witnesses was not such as to give rise to a reasonable apprehension that it failed to approach its task with a mind open to persuasion. Unfortunate though it may have been for the appellant in the present case, that task involved the making of a judgment about the credibility of persons who gave evidence in the proceeding. As I have indicated earlier, the Tribunal was the body charged with making that judgment, and the fact that it did so, including the fact that it had the impression that the witnesses in question had been rehearsed, is no basis for a conclusion that itwas not fairly open to persuasion by the appellant as to the merits of her case. 12 Those were the only two points advanced by the appellant in support of her appeal. For the reasons I have attempted to explain, I do not think that either of them has any substance. In the circumstances, the appeal should be dismissed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.