SZBWY v Minister for Immigration

[2008] FMCA 765

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBWY v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 765

MIGRATION – Review of decision of Refugee Review Tribunal – complaint that the Tribunal was biased – whether Tribunal failed to put to the applicant information that was the reason or part of the reason for affirming the decision under review – complaint that applicant’s and applicant’s wife’s applications were considered separately – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.424A, 91R(3), 425

Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs; [2005] HCA 24; (2005) 79 ALJR 1009
Minister for Immigration v Al Shamry (2002) 110 FCR 27
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259
ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10
VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104

Applicant: SZBWY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3638 of 2007

Judgment of: Nicholls FM

Hearing date: 27 May 2008

Date of Last Submission: 10 June 2008

Delivered at: Sydney

Delivered on: 12 June 2008

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Mr Y Shariff

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 26 November 2007 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3638 of 2007

SZBWY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

1. This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 26 November 2007 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 18 October 2007, and handed down on 8 November 2007, which affirmed the decision of the delegate of the first respondent to refuse a protection visa to the applicant. To succeed before the Court the applicant would need to show, at best, jurisdictional error on the part of the Tribunal.

2. The first respondent has put two bundles of relevant documents before the Court (the Court Book (“CB”) and the Supplementary Court Book (“SCB”) from which the following background may be discerned.

Background

1. The applicant is a national of the People’s Republic of China.  He arrived in Australia on 7 April 2002 (CB 13.4).  On 19 April 2002, he lodged an application for a protection visa (CB 1 to CB 29).  His claim to fear persecution in China arose out of his claimed practice of Falun Gong and, because of this, his opposition to the Chinese government.

2. The applicant claimed to have practiced Falun Gong in Papua New Guinea where he lived from June 1995 to April 2002 before coming to Australia. In Australia, he claimed to have participated in demonstrations in front of the Chinese Consulate (in Sydney) and that he would not be allowed to take his collection of Falun Gong material back to China with him if he were to return, nor would he be allowed to practice Falun Gong.

3. The application was refused (see SCB 1 to SCB 10). The delegate found that the applicant’s claims relating to his practice of Falun Gong “lacked important facts and details notably details regarding his beliefs, his level of knowledge and commitment to Falun Gong” (SCB 8.5). In relation to his coming to the attention of the Chinese authorities, the delegate noted that independent country information on Falun Gong: “indicates that the Chinese authorities are not interested in ordinary practitioners of this movement” (SCB 8.8).

4. The delegate also considered that: “Chinese authorities would be well aware of the strategies adopted by prospective applicants for a Protection visa, in order to create a profile/raise their profile as a Falungong adherent, including participation in protests outside Chinese missions overseas.” The delegate concluded that there is no evidence to indicate that such activities alone would result in the applicant having a real chance of persecution if he returned to China (SCB 10.3).

5. In determining the application, the delegate also took into account that the applicant was able to acquire a passport in his own name, able to depart China on 5 June 1995 and travel to Papua New Guinea where he resided for seven years until his departure to Australia in April 2002 (SCB 10.4), that he returned to China to marry in March 2000, and that he departed China after the marriage with no difficulty (SCB 10.5).

6. The application for review made to the Tribunal on 23 July 2002 (CB 38 to CB 41) has been the subject of consideration by three differently constituted Tribunals. The decision of the latest and third-constituted Tribunal is the decision currently before the Court. The background is as follows:

   1)The “first” Tribunal handed down a decision on 21 October 2003 affirming the delegate’s decision (SCB 15 to SCB 33).

   2)By order of the Federal Court (per Gyles J) on 13 April 2006 this decision was quashed, and the matter was remitted for reconsideration (CB 61).

   3)The applicant appeared before the “second” Tribunal on 4 and 18 September 2006.

   4)The “second” Tribunal affirmed the delegate’s decision by decision handed down on 7 November 2006 (SCB 35 to SCB 58).

   5)This decision also was quashed (by consent) and the matter returned to the Tribunal by order of this Court (per Cameron FM) on 27 February 2007 (at CB 62)

   6)Before the “third” (current) constituted Tribunal, by letter dated 29 March 2007, the applicant was invited to provide any documents or written arguments that he wished the Tribunal to consider which had not already been provided to the Tribunal (CB 63 to CB 64).

   7)By letter dated 7 June 2007, the Tribunal invited the applicant to provide information to confirm that the evidence he had been reported as giving to the first and second Tribunals was true and accurate (“the s.424 letter”) (CB 65 to CB 71).  The applicant did not respond to this letter (CB 144.5).

   8)Also on 7 June 2007, the Tribunal wrote to the applicant (pursuant to s.424A of the Act) providing the applicant with the opportunity to comment on certain information that it said would be the reason, or part of the reason, for deciding that he was not entitled to a protection visa (CB 72 to CB 73).

   9)In particular, the letter sought the applicant’s comments on:

   i)Inconsistencies between the evidence given to a previously constituted Tribunal by his wife and the applicant relating to his claimed practice of Falun Gong which the Tribunal said cast doubt on the plausibility of his claim to be a Falun Gong practitioner.

   ii)Inconsistencies between the evidence of the applicant and his wife relating to a “wanted poster” claimed to have been issued in January 2001, which was not consistent with evidence that indicated that the applicant could be readily located by the police, and inconsistent with the applicant’s own evidence that he was living in a village in the countryside in this period, or in an apartment next door to that of his parents.  

   iii)The Tribunal also noted that the applicant did not mention he was being sought by police in China in his protection visa application, and told the applicant that it cast doubt on the plausibility of his claim to have been of any adverse interest to the Chinese authorities before he left China.

   iv)Inconsistencies between evidence given by his wife and the applicant pointing to a claimed search of the family home.

   v)The applicant’s willingness to re-enter China from Papua New Guinea in 2001, despite his claim that his home had been searched by police, which cast doubt on his claim that the police had searched his home and “more generally” was not consistent with a fear of persecution.

   vi)The inconsistencies in the applicant’s evidence given to the Minister’s Department that he had left China legally, and claims before the Tribunal that he bribed an officer to enable him and his wife leave China in 2001.

   10)The applicant responded by letter dated 2 July 2007 (CB 74).

   11)The applicant appeared before the Tribunal on 20 August 2007.  The Tribunal’s account of what occurred at the hearing is reproduced in its decision record (CB 144.7 to CB 149.10).

   12)On 4 September 2007 (CB 98 to CB 102) the Tribunal wrote to the applicant and gave him the option of either appearing before the Tribunal on a further occasion, or alternatively to provide written comments on the information the Tribunal listed in that letter (CB 98 to CB 102).  The Tribunal directed the applicant’s attention to a claim raised at the hearing of 20 August 2007 relating to his wife expecting their second child and fears of persecution by the Chinese government because of the “family control policy” and independent country information before the Tribunal relevant to this claim.

   13)The applicant did not respond by the date provided (CB 153.4) and subsequently attended a second hearing before the Tribunal on 4 October 2007.  The Tribunal’s account of what occurred on this occasion is set out in its decision record at CB 153.42 to CB 155.4.

Tribunal’s Findings and Reasons

1. The Tribunal found that the applicant was not a credible witness and his claims could not be accepted (CB 162.3). The Tribunal found that the applicant’s claims displayed a minimal knowledge about Falun Gong, and found that if the applicant had engaged in the practice of Falun Gong since 1992 as he had claimed at the later hearing, or 1998 or 1999 as claimed earlier, and is practising “all the time” as he had said, then “he would be much more familiar with the practice and principles of Falun Gong than demonstrated at the hearings in respect of his education” (CB 162.8).

2. The Tribunal also did not accept that the applicant was a “witness of truth in relation to the events he alleged took place in China or about his Falun Gong practice.” The Tribunal relied on inconsistencies in his evidence, inconsistencies as between the evidence of the applicant and his wife, and inconsistent conduct on the part of the applicant (for example, he re-entered China despite knowing that his house had been searched in 2001) (CB 162.8 to CB 163.8).

3. In relation to the “wanted poster” that the applicant had provided in support of his claims, the Tribunal, being satisfied that the applicant was not a witness of truth, rejected this documentary evidence as being false (CB 163.8).

4. The Tribunal therefore did not accept the applicant’s claim that he was engaged in the practice of Falun Gong in Papua New Guinea or on his visit back to China while he was living in New Guinea, and did not accept any of the applicant’s claims that his house had been searched in China and that his family had had to go into hiding because of their practice of Falun Gong.

5. The Tribunal accepted that the applicant may have had some level of engagement with Falun Gong practitioners in Australia and that this may have included attending a demonstration at the Chinese Consulate. But, given that no corroboration was provided of his practice of Falun Gong in Australia, apart from his own evidence, and his demonstrated lack of knowledge of the basic principles and practices, the Tribunal found that if he did have some contact with Falun Gong practitioners in Australia this was only done to strengthen his refugee claims, and accordingly disregarded such conduct in accordance with s.91R(3) of the Act (CB 164.3).

6. In relation to the applicant’s claim raised at the hearing before it that as a result of his wife’s pregnancy the applicant feared that his wife would be forced to undergo an abortion if she were to return to China, because she would be in breach of the “one child policy”, the Tribunal relied on various independent country information available to it to ultimately conclude that the applicant would not suffer harm or persecution on the grounds of his wife’s pregnancy and its consequences if he were to return to China (see CB 164.5 to CB 165.10).

7. The Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations and therefore affirmed the decision under review.

The Application to the Court

1. The grounds of the application before the Court are in the following terms:

   “1.    The Tribunal failed to consider the claism [sic] of my application because of the Tribunal's bias against me. The Tribunal failed to refer to proper independent information for the consideration of my application.

   2. The Tribunal failed to consider my application according to S424A of the Migration Act 1958. The Tribunal had not notified in writing the reason or part of the reason for affirming the decision.

   3.  The Tribunal disbelieved that I am a Falun Gong member because of the Tribunal’s bias against me.”

2. In an affidavit filed at the same time as his application to the Court the applicant repeats his claim of bias on the part of the Tribunal, and adds that the Tribunal “did not refer to proper independent information” in considering his application.

3. Despite opportunity provided at the first Court date in this matter on 12 March 2008, the applicant has not filed any amended application giving particulars of the grounds of review relied upon before this Court, nor has he taken up any opportunity to file any evidence in support of those grounds.

The Hearing Before the Court

1. The applicant appeared unrepresented before the Court. He was assisted by an interpreter in the Fujian, or Fuchien, language. Mr Y Shariff of Counsel appeared for the first respondent who also drafted written submissions filed on behalf of the first respondent.

2. The applicant's demeanour at the hearing before the Court was highly agitated. The applicant displayed a seeming inability to attend to, or answer to, the issue at hand. To a large part, his complaints were not directed to the Tribunal’s decision.

3. The applicant apologised towards the conclusion of the hearing when his behaviour was finally pointed out to him. I understood, in part, his behaviour to be born out of his sense of frustration at having been in Australia since 2002, having applied for a protection visa on 19 April 2002 and the issue of his protection still remaining unresolved. To another small part, I saw the applicant’s problem as arising from an inability, or unwillingness, to understand the process attendant on such application, even after steps were taken to advise him of them (to some extent, I also note that this Court’s Registry may have contributed in a small part. See paragraph [24] below).

4. I did confirm with the applicant at the hearing that he had no problem in understanding and communicating through the interpreter.

The Applicant’s Problems

1. The applicant asked (and demanded) answers to the following.

2. The applicant stated that he had received a telephone call two days before the hearing from the Court and was told that the Court had “lost [his] original documents.” He explained this to be his application to the Court. I advised the applicant that his application was before the Court. [The Court’s Registry has advised that a telephone call had been made to the applicant, but that it arose out of circumstances to do with an error of filing made by a former employee].

3. The applicant also asserted that he had been waiting for the Court “to write [him] a letter requiring more documents from [him] but [he] hadn't received anything.”

4. The applicant did not explain why he had this expectation. I noted with him that it was up to him to put before the Court whatever documents he considered to be relevant to his application before the Court.

5. The applicant further complained, when asked, as to whether he had sought to put other documents before the Court that he was not given “a chance.” He explained this by saying that the Court had just told him that it was “not going to ask for documents” from him.

6. The applicant appeared in person at the first Court date in this matter on 12 March 2008. He was assisted by an interpreter in the appropriate language. Amongst other matters, orders were made to enable the applicant to file any further material relevant to his application (see Orders (1) and (3)).

7. In addition, I note from the Court’s file that the applicant sought access to the Court’s legal advice scheme and was referred to Counsel on the panel of that scheme.

8. The applicant also requested “a lawyer from the Department” to answer why as a Chinese citizen he could not renew his passport. He stated that he and his wife had attended the Chinese Embassy (in Australia) to seek renewal of their passports, but that this was denied to them. They were given travel documents which he complained only permitted them to travel to China, and would not allow them to depart once there.

9. The inconsistency of an applicant who is seeking protection in Australia also approaching the embassy of the country of claimed persecution appeared lost on the applicant. But in any event, this is not a matter which can reveal jurisdictional error on the part of the Tribunal.

10. The applicant also demanded an answer as to why, given that he and his wife came to Australia together, and given that the applicant’s and his wife’s cases were “one before together,” their cases were “separated into two cases.” This, he asserted, was a “mistake made by the Department.”

11. The material before the Court reveals that the applicant applied for a protection visa on 19 April 2002 (CB 1). He appears to have been assisted by a migration agent (CB 29).

12. On the question of having applied jointly, the application reveals that the applicant confirmed that his wife was in Australia but was not included in his application. The reason was given as: “Want to lodge her own application” (see CB 3).

13. When the Court pointed this out to the applicant at the hearing, he then submitted that: “...we were separated by the migration agent. The agent wanted to make more money.”

14. Despite this, the applicant persisted in his complaint and submitted:

    “I always think that we are together because the way we went to the Court, went to the hearing together. Because of mistakes by the Tribunal, so we were separated.”

15. The applicant has not provided any evidence to the Court to support his assertion that the migration agent lodged two separate applications on behalf of the applicant and his wife with the Minister’s Department so as to maximise fees that could be charged. But even if that were the case, that does not reveal jurisdictional error on the part of the Tribunal. In any event, it relates to the protection visa application and not the application for review.

16. Further, the application to the Tribunal made on 23 July 2002 (CB 38 to CB 41) was made by the applicant and did not include his wife. While the same agent appears to have assisted the applicant as in the protection visa application, there is nothing before the Court (in any evidentiary context) to show that the agent acted in any fraudulent capacity.

1. As to what the applicant said occurred before the Court, I note that in relation to the two previous applications for judicial review, orders were made in respect of the applicant alone (see orders of Gyles J and Cameron FM - CB 61 and CB 62 respectively). [It may be that their applications were considered at the same time – but clearly, the orders reflect separate applicants].

2. I do note that while the applicant's application for review was considered on its own by the “first” constituted Tribunal (see SCB 15 to SCB 33) and “third” constituted Tribunal (whose decision is before the Court now), the “the second” constituted Tribunal appears to have considered the applicant’s application for review and that of his wife at the same time (SCB 36 to SCB 58).

3. This appears to have been done because of a request by the applicant and his wife (SCB 38.5) to which the Tribunal agreed for reasons of “convenience.”

4. In all, I cannot see that this matter reveals any “mistake” on the part of the Tribunal or that it reveals jurisdictional error in the decision before the Court.

The applicant’s complaints about the Tribunal decision

1. In relation to the Tribunal decision, the applicant complained that the Tribunal did not give him a “fair chance.” The applicant explained that the hearing the Tribunal did not give him a chance “to show that [he is] a Falun Gong practitioner.” He claimed that he was “weak” because of his “education,” that he lacked ability, and that the Tribunal used this to the applicant’s disadvantage, and in particular, did not “pay attention” to what he had said about his experiences in China and about practising Falun Gong with other people in China.

2. The applicant’s lack of education and its impact on his capacity to explain himself was a matter before the Tribunal. Plainly, the Tribunal took this issue into account in its findings. After having recorded that the applicant displayed minimal knowledge about Falun Gong (and the Tribunal gave various examples of this), it then found:

   “… if the applicant has engaged in the practice of Falun Gong since 1992, as claimed at the third hearing, or 1998 or 1999 as claimed earlier, and is practising ‘all the time’ as he states that he has, he would be much more familiar with the practice and principles of Falun Gong than demonstrated at the hearings, irrespective of his education” (CB 162.8).

3. Further, the Tribunal plainly understood that the applicant had made some claim to have been a Falun Gong practitioner for some time but the Tribunal noted that his claims were inconsistent in this regard. In all, I cannot see that this complaint, seeking to challenge the Tribunal’s findings of fact in this regard, really does not rise above a request for impermissible merits review.

4. The applicant also asked the Court to look into the “issues” of his having to send his eldest daughter back to China and that she is “facing problems” (although the applicant did not say what the nature of the problems was) and that the second child would fall foul of China’s “the family planning law.” It is not, of course, for this Court to determine whether the applicant has a well-founded fear of persecution for a Convention reason because of him or his child (or indeed his wife) falling “falling foul” of China’s one child policy. This is a matter properly for the Tribunal. The material before the Court reveals that the applicant raised this issue (the third constituted Tribunal) at the hearing before the Tribunal on 20 August 2007 (see CB 145.5). Following that hearing, the Tribunal wrote to the applicant by letter dated 4 September 2007 (CB 98 to CB 102) and set out information relevant to its decision on the issue of China's family planning laws. The applicant was given the opportunity to comment in writing on this information by 21 September 2007 or to attend a further hearing before the Tribunal on 4 October 2007 (CB 98). The applicant did not respond in writing, but did attend a further hearing before the Tribunal on 4 October 2007 (noting again the Tribunal whose decision is currently before this Court) (CB 153.4). From the Tribunal’s unchallenged account (the applicant has put no evidence to the contrary before the Court), the Tribunal discussed this issue with the applicant. Further, he was asked to comment on the statement that: “independent country information before the Tribunal indicates that forced abortions are no longer an acceptable means of birth control in Fujian and that forced abortions are rare” (CB 153.6).

5. He was also asked to comment on independent information “in which a university anthropologist has found that children born outside China are largely forgiven” (CB 153.8) and relevant independent country information in relation to the fines imposed on parents who breached China’s one child policy (see generally CB 153.9 to CB 154.5). Further, the applicant was asked to comment on country information which suggested that “Fujian has one of the least coercive planning regimes in China and that in rural areas more than half of all families have more than one child” (CB 154.6). The Tribunal’s findings in relation to this issue are set out in its decision record (CB 164.5 to CB 165.9).

6. In all, the Tribunal complied with its obligation pursuant to s.424A(1) to put to the applicant information which would be the reason part of the reason for its decision. However, I also note that the independent country information to which the Tribunal referred in its letter is information of a non in personam nature and therefore would fall within the exception contained in section 424A(3)(a) from the obligation in s.424A(1) (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92). In any event, there is no jurisdictional error in the Tribunal nonetheless having done so.

7. Further, in terms of a fair hearing, the Tribunal’s record of what occurred at the hearing on 4 October 2007 reveals that the applicant was given the opportunity to discuss the issue and the information on which the Tribunal said it would rely, and was given the opportunity to make comment and give explanations. As such, the Tribunal fulfilled its obligation to provide a hearing pursuant to s.425 (with reference to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”)). 

8. The applicant also complained before Court that the Tribunal lost some of his documents and “wrote a letter to my wife.” The applicant then said: “That is the trick the Tribunal used to separate us.” Further to what has already been set out above in relation to this issue of the claimed “separation” of the applicant’s and his wife’s applications before the Tribunal, I cannot see that any “lost documents” can be seen to have been a part of, or relevant to, the Tribunal’s decision (that is, the Tribunal member whose decision is currently before the Court). The applicant has put no evidence before the Court to support this allegation but even if the applicant and his wife were “separated” in the sense that this Tribunal dealt with his claim alone, I cannot see that this reveals jurisdictional error on the part of the Tribunal. Ultimately, the applicant applied for review in his own right. The Tribunal considered all of his claims as put by him and provided him with a fair opportunity, both in writing and at two separate hearings, to give his evidence and explanations. I cannot see that this complaint reveals jurisdictional error on its part.

9. The applicant also complained before the Court of what he said was the Tribunal’s conduct at the hearing, which he described as being “[j]ust like the Chinese Communist Party,” in that he complained that he was questioned first, and then his wife was questioned later, then he was questioned and then his wife again and that this was unfair. I understood the applicant’s complaint to be that if the cases had been dealt together, this questioning would not have taken place.

10. What relevantly occurred before the “first” and “second” constituted Tribunals has already been set out above. The applicant applied for a protection visa in his own right and applied for review to the Tribunal again in his own right. That he attended the hearing before the “first” constituted Tribunal with his wife, who appears to have given evidence at the hearing (see SCB 24.1), and that he and his wife appeared before the “second” Tribunal, where they both gave evidence (see SCB 46.6 to SCB 52.8), and that he alone gave evidence before the third constituted Tribunal (“The applicant was unrepresented. The applicant’s wife was present at the hearing but the applicant told the Tribunal that she was present as a support person and would not would not give evidence on his behalf” (CB 144.8)) does not, in my view, reveal jurisdictional error on the part of the Tribunal.

11. In reality, the applicant seeks to detract attention from the fact (as found by the Tribunal) that at different times both he and his wife gave inconsistent evidence. In what is before the Court, this was a finding that was open to the Tribunal to make and for which it gave reasons (see CB 162.3 to CB 163.9). 

12. The applicant also complained that he had only been given “this green book” on the morning of the hearing. I understood the applicant to be referring to the Supplementary Court Book filed on 23 May 2008. The applicant complained that he was not given the opportunity to consider this document and sought time to do so.

13. The Supplementary Court Book contains the following documents:

    1)Letter from the first respondent’s Department dated 21 June 2002, notifying the applicant of the refusal of his protection visa application and enclosing the relevant decision record.

    2)Letter from the Tribunal dated 21 October 2003, and enclosing the decision record of the “first” constituted Tribunal.

    3)Letter from the Tribunal dated 7 November 2006, enclosing the decision record of the “second” constituted Tribunal.

14. Given that the applicant sought a review of the delegate’s decision by the Tribunal and sought judicial review in relation to the two earlier Tribunal decisions, these are plainly documents which the applicant would have seen before and would be known to him. Nonetheless, given the late filing of this document and provision to the applicant at a late time, and given that he was unrepresented before the Court, and in light of his language difficulties, I told the applicant that I would grant him one week to make whatever written submissions he wished to make in respect of the material contained in the Supplementary Court Book.

15. The applicant became highly agitated and asserted that it was “a procedural error” on the part of the Minister’s legal representatives to have provided this document at this late time and that they should have given it to him “two or three weeks ago.”

16. While there is nothing in the Supplementary Court Cook that would not have been known previously to the applicant, given his unrepresented status, his non English-speaking background and language difficulties, it is, in part, understandable that the applicant would become agitated and would put to the Court that unless he was given a longer period, he did not want any further opportunity to consider what was in the Supplementary Court Book.

17. Subsequently the applicant reconsidered and I gave the applicant until 6 June 2008 to file and serve any written submissions in relation to the Supplementary Court Book and gave a further opportunity to the respondent (until 10 June 2008) to file any further submissions in reply.

18. The applicant filed written submissions. These were in wording, style, and presentation similar to submissions received in this Court in a large number of other cases, particularly in the period preceding the High Court’s decision in SZBYR Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”). In essence, the submissions assert a breach of s.424A(1) of the Act. The applicant relies on SAAP v Minister for Immigration and Multicultural and Indigenous Affairs; [2005] HCA 24; (2005) 79 ALJR 1009 and Minister for Immigration v Al Shamry (2002) 110 FCR 27. As already set out elsewhere in this Judgment, the Tribunal fully complied with its obligations pursuant to s.424A(1) of the Act.

19. I can only agree with submissions by the respondent that the applicant’s submissions do not seek to address matters arising from the Supplementary Court Book. Rather, they seek to re-agitate Ground 3, with which I address elsewhere in this Judgment.

20. The applicant’s first stated complaint, Ground 1 in the application to the Court, is that the Tribunal failed to consider his claims, because of its bias against him. (Also in his affidavit).

21. First, it is, as Mr Shariff submits, that the first part of the applicant’s complaint in Ground 1 fails at the “preliminary hurdle”, of being factually incorrect.  Ultimately, the applicant made two broad claims in support of his application for a protection visa before the Tribunal.  The first was a fear of harm should he return to China because of his Falun Gong adherence and practice. The second, was the claim raised before the “third” Tribunal in relation to his wife’s pregnancy and a fear of persecution because of the Chinese Government’s “one child policy”.

22. Any plain reading of the Tribunal’s decision record reveals that the Tribunal considered both matters. It was simply the case, for the reasons which it amply gave, that in respect of the claim to be a Falun Gong practitioner, the Tribunal did not find the applicant to be a truthful witness. This finding was open to the Tribunal on what was before it, and for which it gave reasons (Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64]-[69] per Tamberlin and Nicholson JJ).

23. In relation to the one child policy, and the applicant’s claims, it was open to the Tribunal, on what was before it, to find that in the applicant’s circumstances he would not suffer persecutory harm because of his wife’s pregnancy (while conceding that he may be subject to having to pay some fines, or subject the State’s refusal to grant household registration, which the Tribunal found in the applicant’s circumstances did not amount to serious harm).

24. At best, in all the circumstances, I can only say that the applicant’s complaint that the Tribunal failed to consider his claims is really a complaint that the Tribunal did not accept his claims. As such, the applicant seeks impermissible merits review before this Court (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259). In addition, the Tribunal’s finding that the applicant was not a witness of truth in relation to his claimed Falun Gong practice was a finding which was made within jurisdiction by the Tribunal as the relevant “decision-maker par excellence” (ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67]).

25. The applicant’s claim of bias, both referred to in Ground 1 and in Ground 3 to the application (and his affidavit) is, in all the circumstances, put forward simply as an explanation for the Tribunal’s failure to believe his evidence. With reference to relevant authorities, I cannot see that the Tribunal failed to bring an open mind to these proceedings, or even that a well-informed lay observer would reasonably apprehend the Tribunal to have been biased (Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28, Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361, Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102).

26. Further, as Mr Shariff submits, it is a rare case for bias to be established with reference only to the reasons of the Tribunal (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38], per von Doussa J). This complaint also does not succeed.

27. The applicant also complains in Ground 1 that the Tribunal failed to refer to “proper independent information for the consideration of my application”. The applicant was unable to say what proper information the Tribunal should have referred to, and considered. In any event, it is now settled that the Tribunal’s use of independent country information, and in particular the weight given to that material, is a matter for the Tribunal (see NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11], VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104 (at [32]). This complaint also does not succeed.

28. In Ground 2, the applicant asserts a breach of s.424A of the Act. Again, this is not particularised, and the applicant was unable to relevantly assist the Court when he appeared before it.

29. The Tribunal did write to the applicant pursuant to s.424A(1) by letter dated 7 June 2007 (see CB 72 to CB 73 and CB 142.9 to CB 143.10), and the items referred to in that letter specifically brought the information to the applicant’s attention, in respect of which he was given the opportunity to comment, were ultimately a part of the reason for the Tribunal’s decision in finding that the applicant was not a witness of truth (see CB 162 to CB 163). The applicant, therefore, was given the opportunity to comment. The Tribunal did fulfil its obligations pursuant to s.424A(1).

30. I note also that, given what was said by the High Court in SZBYR at [18] (and the High Court reference to VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123), the Tribunal’s evaluation and adverse views of the applicant’s evidence is not “information” for the purposes of s.424A(1) such as to enliven the Tribunal’s obligation.

31. To the extent that the Tribunal relied on independent country information such information does not fall within s.424A(1) because of the exception contained in s.424A(3)(a) of the Act in that it was non in personam information (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92)

32. The Tribunal wrote to the applicant on 4 September 2007 following the hearing of 20 August 2008, and gave him the opportunity to comment in writing, or at a further hearing, on information relevant to the issue of China’s family planning laws, an issue raised for the first time, by the applicant, at the hearing. The applicant chose to attend a further hearing on 4 October 2007.

33. On the Tribunal’s unchallenged account (by any evidence brought to the contrary by the applicant) the issue and the information on which it relied were fully discussed.

34. In all, I cannot discern any jurisdictional error in this regard on the part of the Tribunal.

35. It may be that the applicant’s real complaint here is that the Tribunal should have provided the applicant with its draft reasons for decision for his comment prior to the handing down of the decision.  

36. If this is the case, there is no obligation on the Tribunal to have done so pursuant to s.424A. In any event, I note that following the first hearing before the (“third”) Tribunal, the Tribunal did write to the applicant pointing out inconsistencies between evidence given at the first hearing before it, and independent country information on which it relied. The applicant was given the opportunity of either responding in writing or attending a further hearing before the Tribunal. He took up the latter offer and gave further evidence in relation to the claim raised for the first time before the (“third”) Tribunal relating to his wife’s pregnancy and the “one child policy”. In all, I cannot see that this complaint (if this is what is meant) can assist the applicant.

1. To the extent that the applicant complains in Ground 3 of the application that the Tribunal “disbelieved” that he was a Falun Gong practitioner this finding, being a finding as to the applicant’s credibility, is a finding of fact within the function of the Tribunal, open to it on what was before it, and for which it gave reasons. I cannot see jurisdictional error in this regard.

2. I should just note (given that the applicant is unrepresented before the Court) that to the extent that the Tribunal made reference to what occurred at the hearings before the earlier constituted Tribunals, the Tribunal did provide the applicant with the opportunity (which he took up) of a “further” (that is, further to the hearings before the earlier constituted Tribunal) hearing before it in relation to his claim to be a Falun Gong practitioner, and even provided yet a further opportunity in relation to his subsequent claim in relation to his wife’s pregnancy and the “one child policy.” I cannot see that there has been any failure to afford the applicant a full hearing as contemplated, and required, pursuant to s.425.

3. Further, in light of the High Court’s judgment in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, and what constitutes procedural fairness in the discharge of the Tribunal’s obligation pursuant to s.425, I note that at the hearing of 20 August 2007, the issue of his Falun Gong practice and his claim of persecution if he were to return to China was clearly discussed. The issue of his claimed fear of harm because of his wife’s pregnancy, the “one child policy,” and independent country information relevant to the disposition of this issue, was discussed at the subsequent hearing on 4 October 2007.

4. In all, the applicant’s grounds do not demonstrate jurisdictional error on the part of the Tribunal, nor can I otherwise discern such error. This application is therefore dismissed.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date:  12 June 2008

CORRECTIONS

1. At “Date of Last Submission” – delete “27 May 2008” insert “10 June 2008”