SZDUG v Minister for Immigration

[2005] FMCA 1241

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDUG v MINISTER FOR IMMIGRATION [2005] FMCA 1241

MIGRATION – Refugee – claims based on the Convention reason of political opinion – failure to take into account relevant issues – bias – failure to comply with s.424A of the Migration Act – no reviewable error.

Migration Act 1958, ss.424A, 422B, 441A

Re:Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60
Commissioner for Australian Capital Territory Revenue v Alphanone Pty Ltd (1994) 49 FCR 576
Re: Refugee Review Tribunal; Ex parte Aala [2000] HCA 57
Tin vMinister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1109
Minister for Immigration & Multicultural & Indigenous Affairsv Jia [2001] HCA 17
Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28
NAMW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 264

Applicant: SZDUG

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 1755 of 2004

Judgment of: Nicholls FM

Hearing date: 29 August 2005

Date of Last Submission: 30 March 2005

Delivered at: Sydney

Delivered on: 1 September 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr. J. Smith

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The application is dismissed.

2. The applicant to pay the respondent’s costs set in the amount of $4500, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1755 of 2004

SZDUG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 8 June 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 8 April 2004 and handed down on 4 May 2004 to affirm the decision of a delegate of the respondent Minister made on 21 May 2002 to refuse a protection visa to the applicant.

2. The applicant is a National of the People's Republic of China who arrived in Australia on 25 April 2002 and applied for a protection visa on 10 May 2002. Her claims of fear of persecution are based on the Convention related reasons of political opinion and in particular that she feared she would be punished for disseminating pro-democracy opinion amongst preschool children in China.

3. The applicant filed an amended application on 29 November 2004 which asserts error of law and an absence of natural justice. The applicant’s particularised complaints appear to be:

   1)A failure on the part of the Tribunal to consider the issues raised by the applicant.

   2)That the Tribunal failed to provide to the applicant an opportunity to comment on its “negative opinions" in relation to her claims as against her subsequent statement.

   3)The Tribunal failed to consider certain facts.

   4)The Tribunal failed to comply with s.424 of the Migration Act although in this context it appears that this is a complaint that the Tribunal failed to comply with s.424A of the Act.

4. The applicant was unrepresented at the hearing before me. She was assisted by an interpreter in the Mandarin language. I note that the applicant was given the opportunity to access the Court’s Legal Advice Scheme and did receive advice on 11 December 2004.  At the hearing before me the applicant submitted that her complaints were clearly expressed in her further submissions. I took this to be a reference to the matters asserted in the amended application and in particular:

   1)That the Tribunal was biased in that it assessed her claims, particularly in relation to the issue of Democratic education, against the “Australian way” and did not understand about the situation in China.

   2)That the Tribunal did not consider the additional information that she had submitted after the hearing before the Tribunal.

5. The applicant's claims for a protection visa were contained in her application to the respondent's Department (reproduced at Court Book 1 to CB 24) and in particular in an attached statement at CB 25 to CB 28. The application to the Tribunal is at CB 44 to CB 47 and the applicant provided a further presentation of her claims in an attachment at CB 48 to CB 52. The Tribunal wrote to the applicant by letter dated 11 November 2003 and I note that this was sent to the applicant's migration adviser with a copy to the applicant, inviting the applicant to a hearing as the Tribunal had advised the applicant that on the material before it, it was unable to make a decision in her favour. The applicant attended a hearing before the Tribunal on 9 December 2003 and subsequently provided a further written submission to the Tribunal on the 19 December 2003 which is reproduced at CB 62 to CB 66. The Tribunal's account of the hearing before it is set out in its decision record at CB 74.5 to CB 76.6.

6. While the Tribunal accepted that the applicant had worked as a teacher as claimed, it found her evidence at the hearing before it as variously:

   1)“generally vague inconsistent and outlandish” (CB 74.5)

   2)“lacked detail and insight” (CB 75.2)

   3)When asked to give examples of her work she did not do so with any “conviction, substance or credibility” (CB 75.5)

   4)Her evidence about her allegedly seditious teaching was vague and inconsistent (CB 77.8).

7. The Tribunal clearly had problems with the credibility of the applicant's claims:

   1)She did not leave her teaching work for the reasons given (CB 77.8).

   2)The teaching method employed by her, and to the extent that this could mark her out as anything but a tool of the state education system and at best her claims revealed that she merely told her pupils to respect their parents (CB 77.9).

   3)Her claims in respect of the existence of a group she claimed she formed in response to her sacking were fabrications (CB 78.3).

   On the basis of these findings the Tribunal found that the applicant was not a person to whom Australia owed protection obligations.

8. The applicant's first complaint in her amended application, and one that she emphasised at the hearing before me, is that following the hearing before the Tribunal she provided a statement in support of her claims to the Tribunal, and emphasised a number of issues but that the Tribunal as evidenced by its decision record, failed to consider all of the issues carefully and fairly. It is clear that the Tribunal did address the post hearing submission in its statement of reasons. The Tribunal noted at CB 76 .7 that:

   “The Applicant radically revised her evidence in a post-hearing submission, providing a summary of a purported 6-part, highly structured learning module called “Moral Education”. The module appears to lack any sign of political content. In fact, it appeared innocuous, apart from being, as the Applicant, claimed, off-syllabus. The content, detail and tone of the submission, speaking to this 6-part module and explaining why it was opposed by the state, is a far departure from the content, detail and intellectual quality of the evidence provided by the Applicant herself at the RRT hearing. The submission was prepared with assistance from the Applicant’s adviser, who attended the hearing and who would have noted the Tribunal's concerns about the applicant's inability to explain her teaching consistently or in any detail.”

   In its “Findings and Reasons” at CB 77.8 the Tribunal said:

   “Her evidence about her allegedly seditious teaching was vague and inconsistent. Her attempt to provide greater detail in writing after so clearly failing to do so in the course of a simple question and answer exchange at the RRT hearing is dismissed by the Tribunal as a product of afterthought and probable coaching. In fact, to the extent that the Applicant provided any detail about her teaching at all, she described nothing that could conceivably mark her out as anything but a tool of the state education system in the PRC: at best, her claims reveal that she merely told her pupils to respect their parents, a social norm that arguably befits a patriarchal or authoritarian state, and to tidy up after themselves.”

9. It is clear the Tribunal did address the core of the applicant's claims in her post hearing submission, being the subject that she taught in her school and allegedly the Chinese government's attitude to it. The Tribunal rejected this material as appearing to lack any sign of political content, and appearing innocuous, and it gave reasons for this. It rejected her post hearing submission in total on the basis that it was a product of afterthought in circumstances where the applicant had been unable to provide any detail of her teaching methods during the hearing. It was clearly open, as Mr. Smith for the respondent submits, for the Tribunal to reject this submission on the basis of its finding of it being a post hearing invention, given what had clearly occurred at the hearing before the Tribunal. Further, the Tribunal rejected the central part of this submission relating to her teaching, for reasons that were open to it on the material before it. The Tribunal clearly formed an adverse view of the applicant's credibility at the hearing before it, and was not persuaded by the subsequent submission. The Tribunal provided the applicant with an opportunity at the hearing before it, to provide details in support of her claims and clearly put its concerns with her answers to her (see in particular CB 74.8 and CB 75). I can see no substance in this ground and the applicant cannot succeed on this basis. The Tribunal had difficulty with the applicant’s attempts to explain her teaching methods and teaching related issues at the hearing before it. It rejected the subsequent submission on the basis that:

   1)It was a product of afterthought.

   2)It was made in a context where the applicant had the opportunity of being coached by her adviser after seeing that she clearly failed to be able to explain her allegedly seditious teaching at the hearing before the Tribunal.

   3)But in any event, in relation to the key issue of the teaching situation the Tribunal found the submission did not support the claims that the teaching module was opposed by the state and at best revealed that she merely told her pupils to respect their parents.

10. At the hearing before me the applicant claimed that she was not able to clearly express herself at the hearing before the Tribunal and only did so in the subsequent written submission. I appreciate the difficulties faced by people from a non-English speaking background in undertaking applications through the Tribunal process (and indeed through the Courts). But this applicant had the benefit of an adviser who attended the hearing before the Tribunal and on the Tribunal’s unchallenged account of what occurred at the hearing before it, there does not appear to have been any intervention by the adviser (nor has the applicant now asserted anything to the contrary) to argue any difficulty on the part of the applicant. There is nothing before me to show, nor is there any assertion, that the applicant had any interpreting difficulties at the hearing before the Tribunal. As I have already set out above these findings are all open to the Tribunal on the material before it, and in particular in circumstances where the Tribunal was able to compare her oral claims with the subsequent written statement it was open to it to reject the written submission as a product of afterthought. The Tribunal did consider the submission and rejected it as being “opportunistic”. But in any event, it also rejected the written submission for the reason that its content in relation to the key issues did not support the claims made by the applicant. It clearly noted (CB 76.7) that the teaching module in the written submissions lacked any sign of political content. This ground cannot succeed.

11. The applicant's second complaint in her amended application, and linked to the ground above, is that the Tribunal failed to provide the applicant with a fair opportunity to comment on its “negative opinions” in relation to the post hearing statement. There is, of course, authority that the Tribunal is not required to provide an opportunity for comment on its thought processes on the way to making its decision (see Re:Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60 and also the case referred to by Counsel for the respondent, Mr. Smith: Commissioner for Australian Capital Territory Revenue v Alphanone Pty Ltd (1994) 49 FCR 576. This general proposition is qualified by the requirement that the decision maker should provide an opportunity for comment on any adverse conclusion which would not obviously be open on the material supplied by the applicant. The key issue is that the applicant should not be caught unawares. As McHugh J. said in Re: Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 at [100]:

    “One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding.”

12. In the case before me it is clear that the Tribunal did have difficulty in specifically accepting the applicant's claims in relation to her teaching, and this was evident at the hearing before it. For example, the Tribunal records, and this is unchallenged before me, that it put its concerns to the applicant:

    1)At CB 74.8:

    “The Tribunal therefore put it to the Applicant the notion of handing pro-democracy pamphlets to infants seemed problematic for a number of reasons.”

    2)At CB 75.4:

    “When the Tribunal expressed concerns about the Applicant's dismissal of warnings from the head teacher, she said that she had not considered his warnings serious.”

    3)At CB 75.5:

    “When the Tribunal asked her to stage an example of the class she claimed to have given to the children in her care, she appeared unable to do so with any conviction, substance or credibility.”

    4)At CB 75.9:

    “The Tribunal put it to the Applicant that there was no theory in what she was saying, and certainly no politics.”

    5)At CB 76.2:

    “When the Tribunal asked the Applicant if her pamphlets criticised the State, she said simply that, rather, they criticised the syllabus as undemocratic. However, soon after, she retreated from this claim.”

13. It would have been quite clear to the applicant and to her adviser at the hearing before the Tribunal that the Tribunal was in the process of forming critical views of her evidence. In the circumstances of the case before me it is clear that the applicant felt the need to make a supplementary written submission following the hearing. The issues raised in the submission clearly follow the issues that it raised with the applicant as reported by the Tribunal in its record of the hearing. No real new issue is raised by the applicant in the statement and the submission as stated by the applicant herself is in the context of supporting the matters that were raised at the hearing:

    “Many thanks for the hearing arranged by the Tribunal. In order to further support my review application, I would like to provide further information for your kind consideration as follows”
    (CB 60.5)

14. In any event, as Mr. Smith submits the review conducted by the Tribunal was subject to s.422B of the Act and to the extent that Division 4 Part 7 of the Act is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with, then s.424A deals with information that must be given to the applicant. Section 424A(1) provides that the Tribunal must give to the applicant information that would be the reason or part of the reason for a firming the decision under review. Clearly s.424A is concerned with knowledge of the fact or circumstantial communicated or received by the Tribunal. It is not concerned with the thought process of the Tribunal. In Tin vMinister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1109 His Honour Justice Sackville said:

    “It follows that a subjective determination by the Tribunal that the applicant's account is or may not be credible does not enliven the obligation imposed by s.424A(1). Thus, even if the Tribunal had not alerted the applicant to the possibility that her evidence might not be accepted at face value, its failure to do so would not have contravened s.424A(1).”

    The Tribunal gave the applicant notice of its doubts about her claims first by letter inviting her to a hearing before the Tribunal (CB 56) and then at the hearing. She had the assistance of a migration adviser and made written submissions to the Tribunal both before (CB 48 to CB 50) and after the hearing with the Tribunal. The Tribunal was entitled on what was before it to make the findings that it did in relation to the post hearing written submission and in relation to its contents. The applicant cannot succeed on this ground.

15. The applicant's third complaint in the amended application is that the Tribunal failed to consider certain facts. The facts referred to are matters that were before the Tribunal and on a plain reading of the Tribunal's decision record and on the material before it, it is clear that the Tribunal did consider the matters now put forward by the applicant and to that extent this ground is no more than an attempt to seek in permissible merits review. It is clear that the applicant's reference now to failure to consider really means failure to accept and to find favourably for the applicant.

16. At the hearing before me the applicant also claimed that the Tribunal was biased in the way that it approached the assessment of the applicant's case, with particular reference to the assertion that the Tribunal used the “Australian way” to assess her application and did not understand about China. I understood the applicant to be saying that the Tribunal applied Australian standards of teaching and an Australian understanding of issues such as democracy, instead of the relevant standards as they exist in China. Mr. Smith's submissions, with which I agree, is that this is an issue of fact and that there was no evidence before the Tribunal for a claim by the applicant based on any difference between Australian standards of teaching and relevant ideas, and any such standards in China. The Tribunal's decision record shows that the Tribunal did look at the applicant's claims as put by the applicant and did assess these claims. Central to the applicant's claims was that her teaching brought her into conflict with the authorities. In these circumstances it was appropriate for the Tribunal to ask for details of the method of teaching and the content. The Tribunal's decision clearly turned on the applicant's answers at the hearing it conducted with her and her inability to demonstrate her teaching consistently or in any detail. Further, the written submission, in addition to being rejected as an afterthought, was also found by the Tribunal not to evidence matters that would bring her in conflict with the authorities. It was these issues that led to the Tribunal’s ultimate finding, not any discrepancy between the “Australian and Chinese way”. The applicant's assertion now that the Tribunal failed to apply and understand the Chinese way cannot succeed as the Tribunal's decision was based on the applicant’s inability to support her claims, rather than on any discrepancy or need for comparison between Australian and Chinese standards. The applicant's claim of bias based on this issue cannot be made out, nor is there anything else before me to show that the relevant test for bias can be made out. The relevant authorities establish that allegations of bias carry an onus that the claim must be distinctly made out and clearly proved. Actual bias requires evidence of “prejudgement” by the decision maker in the sense that he or she is “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented.” (Minister for Immigration & Multicultural & Indigenous Affairsv Jia [2001] HCA 17, [69], [71]-[72], [127]) The real question is whether the mind of the decision maker is open to persuasion. In relation to the apprehension of bias relevant standards of reasonableness are determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes. (Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28, [27]-[32]). The applicant’s claim, on what is before me, clearly fails the relevant tests.

1. The applicant's fourth complaint in the amended application is stated as a failure by the Tribunal to comply with its obligations under s.424 of the Act. This section deals with a situation where a Tribunal may seek additional information. There is of course no obligation on the Tribunal to do so in each and every case before it. The obligation is that once having sought such information the Tribunal must have regard to it. There is no evidence before me that the Tribunal sought any additional information in this case, and to the extent that it can be inferred from the material before me, it appears that the applicant’s post hearing submission was made on her, or her adviser's, initiative. In any event the Tribunal did have regard to the material that the applicant had provided to it, and it rejected this information and explanations for the reasons given above.

2. However, it appears from the wording of the applicant's amended application that the applicant is really alleging a breach of s.424A of the Act. While I agree with the respondent’s Counsel that it is difficult to see what is specifically alleged, especially because of the lack of clear particularity, the following may be what the applicant intends:

   1)That the Tribunal failed to give complete information, particularly the negative “information” (inferences), regarding the supplementary submission and to explain clearly the information used by the Tribunal in rejecting this material. Again this would be an attempt to argue a failure on the part of the Tribunal to put its adverse thought processes to her and should be rejected for the same reasons as set out above. Also as set out above I should note that the Tribunal did not rely on any independent information to reject the applicant's post hearing submission, but did so, as set out above, for its finding that it was a product of afterthought and that its content in any event did not support the applicant’s claim that her teaching brought her into conflict with the authorities..

   2)To the extent that the applicant may be referring to independent information she could also be referring to information regarding the legality of her departure from the PRC which the Tribunal did refer to in its decision. This could be a reference to some of the country information at CB 82 to CB 116. In its “Findings and Reasons” the Tribunal did say at CB 78.5:

   “The Applicant’s evidence of the legality of the departure from the PRC is strong evidence of her having an unremarkable relationship with the authorities as far as the present jurisdiction is concerned.”

   The Tribunal in its setting out of her “Claims and Evidence” made reference at CB 74.3 to:

   “The fact that the Applicant was granted a passport and was allowed to depart the PRC legally support the impression that she had an unremarkable relationship with PRC authorities: ‘ordinary passports are issued by the Public Security Bureau [police] in the various Provinces and cities’ (DFAT, Country Profile: China [Canberra, 1994] at 1.3.1)”

   The Tribunal's ultimate finding at CB 78.5 may be said inferentially, and in very general terms at best, to rely on the independent information relating to passport and exit procedures in the PRC. But to the extent that they may be said to have relied on independent country information to make the statement that it did in relation to departure, any such information as it relates to information that is not specifically about the applicant or another person would be excluded from the requirement set out in s.424A(1) of the Act by the operation of s.424A(3)(a) (see the most recent preferred view of the meaning of s.424A(3)(a) as explained in the Full Federal Court decision in NAMW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 264). But, it is quite clear that the Tribunal's concluding decision did not rely on the comment of the Tribunal regarding her departure from China or on the independent country information on which it was based. The applicant was unsuccessful before the Tribunal because she was unable to convince the Tribunal of the credibility of her claims. By the time the Tribunal came to make the statement concerning the legality of her departure from the PRC this was clearly in the context of the Tribunal already having rejected the applicant's claims for the reasons already stated above. (Given the above, the applicant's statement in her amended application relating to s.441A of the Act also would not assist the applicant.) This complaint is also not made out.

3. The Tribunal considered all of the claims as put by the applicant who, with the assistance of an adviser, was given the opportunity to attend a hearing before the Tribunal and further, made subsequent written submissions which the Tribunal did take into account. I cannot see any claims that were not properly considered by the Tribunal. The Tribunal did not believe the applicant's claims based on what it saw as being vague and inconsistent evidence, and the finding that the evidence did not support the claims made. These findings were all open to the Tribunal on the material before it. I can see no error in the what the Tribunal has done and accordingly this application is dismissed

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Sybilla Waring-Lambert

Date:  1 September 2005