SZGSU v Minister for Immigration

[2005] FMCA 1897

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGSU v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1897

MIGRATION – Review of decision by Refugee Review Tribunal – apprehended or actual bias – irrationality or illogicality of the Tribunal’s reasoning – information given to the Tribunal for the purposes of its review – conduct of Tribunal hearing.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S

NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328
M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131
SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034
NACB v Minister for Immigration and Indigenous Affairs [2003] FCAFC 23 VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286
WAJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 79

Applicant: SZGSU

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1816 of 2005

Judgment of: Emmett FM

Hearing date: 7 December 2005

Date of Last Submission: 7 December 2005

Delivered at: Sydney

Delivered on: 22 December 2005

REPRESENTATION

Applicant appearing on his own behalf

Solicitors for the Respondent: Ms O. Mak, Clayton Utz

ORDERS

1. That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.

2. That the Refugee Review Tribunal be joined as Second Respondent

3. That the Applicant’s applications before this Court are dismissed.

4. That the Applicant pay the First Respondent’s costs in an amount of $4600.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1816 of 2005

SZGSU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the Applicant.

2. The Applicant is a 34 year old man who claims to be a citizen of the Peoples Republic of China (“the PRC”).

3. The Applicant arrived in Australia on 26 January 2005, having departed the PRC from Macau Port on 25 January 2005 using a passport issued in his own name.

4. On 3 May 2005, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.

5. The Applicant claimed that he will face persecution if he returns to the PRC for reason of his religion as a practitioner of an underground church.

6. On 6 May 2005, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person of adverse interest to the Chinese authorities because of his religion and therefore will not face a real chance of persecution if he were to return to the PRC and is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.

7. On 16 May 2005, the Applicant lodged an application for review before the Tribunal. On 30 June 2005, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

8. On 11 July 2005, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

9. Pursuant to Short Minutes of Order made, by consent, on 4 August 2005, the Applicant filed an amended application on 4 October 2005 (“the Amended Application”).

Legislative framework

1. Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.

3. Australia owes protection obligations to a refugee on Australian territory.

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceeding

1. The Tribunal had before it the Department’s file, including the application for a protection visa and the Delegate’s decision record.

2. The Applicant attended the Tribunal hearing on 27 June 2005 and gave oral evidence.

3. The Applicant claimed that he converted to Christianity after meeting his wife in 1995 and assisting her to build a church.

4. The Applicant claimed that, on 3 occasions between May and June 2001, the police raided Christian gatherings which the Applicant was attending. The Applicant claimed that on the first occasion the group were warned by the authorities “Don’t do it again” and, on the second occasion, the group were detained for several days at the police station, until a friend paid a fine that secured their release. On the third occasion, the Applicant claimed that the police came to his house, where the meeting was being held, and he blocked the door to allow the others to leave. The Applicant claimed that he was arrested and taken to the police station where he was assaulted by seven to eight other prisoners, with the consent of the officer in charge, until the officer intervened and called an ambulance for the Applicant who was then transferred to the local hospital. The Applicant acknowledged that he had received no formal paperwork in respect of his arrest, but had been told that he was charged with “committing underground activity”.

5. The Applicant claimed that he escaped from the hospital when the guard fell asleep and went into hiding, staying at different locations within the Fujian province. During this period, the Applicant claimed that he lost contact with his wife and his children went to live with his parents.

6. The Applicant claimed that he went to stay with a friend upon his escape from the hospital. He claimed that he stayed with this friend for most of the 3 ½ years before he left the PRC. He claimed that his friend had a contact on the police force, who he “tapped for information”. He claimed that this police officer informed the friend that the police were looking for the Applicant and made threats against him.

7. The Applicant claimed that a friend arranged the necessary documents for his travel to Australia, although the Applicant advised the Tribunal, at the hearing, that he already possessed a passport which he had obtained, together with a visa to Thailand, on 11 June 2001, with the intention of going on a holiday. The Tribunal asked the Applicant, why he did not use the passport and visa to leave the PRC following his escape on 30 June 2001, to which the Applicant responded that he was worried about his wife and children.

8. The Tribunal asked the Applicant what had prompted him to leave the PRC in 2005, some 3 ½ years after his escape from the hospital. The Applicant stated that was being persecuted by the government. However, the Applicant acknowledged that he had not had any contact with the authorities during the 3 ½ years prior to him coming to Australia.

9. The Applicant claimed that his travel from the PRC to Australia, via Macau and Taiwan, was arranged by his friend who obtained all relevant documents and bribed officers at the Macau Port to allow the Applicant through immigration unchallenged.

10. The Tribunal asked the Applicant if he had made attempts to find out what had happened to his wife and the others in attendance at the gathering in June 2001, and noted that the Applicant’s responses to this question were “vague”. The Applicant stated that he did find out that his wife had not been seen since the raid and that the underground church members looked for her whilst they were out spreading the gospel. He also claimed that he had found out two other persons in the house at the time had relocated “out of sight of authorities” and the other two were missing. The Tribunal noted that the Applicant’s “apparent lack of urgency” about locating his wife was “odd”.

11. The Tribunal asked the Applicant if he had worked during the 3 ½ years prior to leaving the PRC and, if not, how he had supported himself. The Applicant responded that he had not worked and lived off the money left over from the close of his business.

12. The Applicant claimed that the police had gone to his parent’s home on a number of occasions asking for the Applicant. The Tribunal asked the Applicant if the police had left any documents with his parents, for example, a warrant. The Applicant responded that his parents were old and would not know what to do with any such document. The Tribunal further asked the Applicant whether his parents would have given any such document to the Applicant’s friend, who had been in contact with them, to which he replied, they probably would have.

13. The Applicant claimed that the police had also shown his face, his wife’s face and the faces of other friends on a television report, which identified persons of interest, to the police.

14. The Tribunal put to the Applicant that it found it hard to accept that the police had not visited the friends house where he had stayed for 3 ½ years, given that the friend was also a member of the underground church. The Applicant stated that the police contact warned his friend that they were going to visit his parents. The Tribunal observed that, in that case, the Applicant could have continued to reside there and live with his children.

15. In response to questions about the Applicant’s friend and how he had afforded to pay for the Applicant’s travel to Australia, the Applicant responded that the friend did not work but had money that he had bought with him from Argentina where he had run a business.

16. The Applicant claimed that he was detained by immigration officials in Sydney on the basis that he was working in contravention of his visa. The Applicant stated that he appealed the decision to cancel his visa, prior to applying for a protection visa. The Tribunal put to the Applicant that it was possible to draw the conclusion that the Applicant was not really seeking protection in light of his actions in attempting to gain other visas. The Applicant stated that he did not know about the availability of refugee visas until meeting with legal aid. The Tribunal noted that this claim was inconsistent with the Applicant’s claims that he came to Australia to seek asylum.

17. The Tribunal noted, and the Applicant agreed, that no other church members had problems with the authorities, despite being members for much longer than himself.

18. The Tribunal accepted that the Applicant is a citizen of the PRC.

19. The Tribunal noted that it had set out the content of the hearing in detail to demonstrate that the Applicant’s evidence lacked detail, except for the dates of 3 incidents. The Tribunal found that they were “largely implausible”.

20. The Tribunal noted that the Applicant failed to explain satisfactorily why he had waited 3 ½ years, from the time of his alleged escape from police custody, until his departure from Australia, and what it was that prompted him to depart at that time. The Tribunal noted that, despite claiming persecution by the police, the Applicant had no encounters with authorities during that 3 ½ years, despite maintaining his home town residence.

21. The Tribunal noted that the Applicant claimed that he did not leave the PRC following his escape, although he had a passport and visa to Thailand, because he was worried about his wife and children. However, the Tribunal noted that the Applicant’s account of when he knew his wife to be missing, and what measures were being put in place to find her, were “casual and vague.”

22. The Tribunal also noted the fact that the Applicant did not explain why he chose January 2005 to depart and, in any event, seemed to travel a long distance within the PRC without challenges from the authorities. The Tribunal noted that the evidence did not suggest that customs officers were bribed to allow him into Taiwan, although the Applicant proffered this as an explanation.

23. The Tribunal also noted that the Applicant was issued with a passport in the PRC, at the time he claimed to have come under police scrutiny, in the latter half of May 2001.

24. The Tribunal noted that it had been offered no satisfactory reasons as to why the Applicant would be the subject of a police search for the length of time he claimed, where no formal charges had been laid against him and no warrants issued for his arrest.

25. The Tribunal noted that:

    “there were so many implausible aspects to the applicant’s testimony; the lack of police interest in his friend, who is a full time gospel teacher; the lack of police interest in his parents who share the applicant’s house and could be presumed to also be members of the underground church, especially as their daughter in law also devotes herself full time to spreading the gospel and has done so for many years; the claim that all 4 people led out of the house by his wife in June 2001 have “disappeared” although 2 of them keep in touch with the applicant’s parents in order to ask how the applicant is faring.”

26. The Tribunal was not satisfied, in respect of any response from the Applicant, about its concerns in relation to the genuineness of the Applicant’s quest for a protection visa. It noted that the Applicant applied only after other avenues failed. The Tribunal noted that the Applicant did not take advantage of freedom of worship once he came to Australia, did not seek out a church and did not attend church until he was detained.

27. The Tribunal noted the Applicant’s claim that he was mistreated on one occasion by police at the time of his arrest and was beaten by other prisoners, although he acknowledged a policeman rescued him.

28. The Tribunal found that the Applicant was “vague” as to what may happen to him if he were to return to the PRC, other than to say that he thinks it will be “severe”. The Tribunal noted that the Applicant claimed that the police would still target him and punish him severely for an incident that happened nearly 4 years ago and, in respect of which, no formal charges have been laid and no warrants or further documents issued.

29. The Tribunal noted that it put to the Applicant, on a number of occasions, that his testimony was not making sense and was not credible. However, the Tribunal noted that the Applicant did not clarify his testimony or otherwise address the Tribunal’s concerns.

30. Accordingly, the Tribunal was not satisfied that the Applicant has suffered harm amounting to persecution for a Convention reason in the past and was not satisfied that there is a real chance he will suffer serious harm in the reasonably foreseeable future for a Convention reason.

The proceeding before this Court

1. The Applicant relied on his Amended Application filed in this Court on 4 October 2005 which identified the following grounds:

   “1.    The Tribunal constructively failed to exercise its jurisdiction and to afford the Applicant natural justice in circumstances where the conduct of the Tribunal including what was said and done at the hearing and from the terms of the reasons, the decision was “affected by” apprehended bias.

   2. The Tribunal misconceived the role of the hearing and failed to afford a hearing of the character contemplated by the Migration Act 1958.

   3. The Tribunal failed to provide particulars under s424A of the Migration Act 1958.

   4. The Tribunal came to its state of satisfaction unreasonably, illogically and irrationally in a manner and therefore fell into jurisdictional error by not dealing with the question presented by sections 36 and 65 of the Migration Act 1958.”

2. The Applicant was unrepresented before this Court although he had the assistance of an interpreter. The Applicant appeared via video link as he is presently in detention in Baxter Detention Centre in South Australia.

Ground 1 - The Tribunal constructively failed to exercise its jurisdiction and to afford the Applicant natural justice in circumstances where the conduct of the Tribunal including what was said and done at the hearing and from the terms of the reasons, the decision was “affected by” apprehended bias

1. The Applicant stated that this ground arose out of a conversation that he had with an immigration officer that told him, after the Tribunal hearing but before the Tribunal decision was made, that he would have to go back to where he came from, that this officer had the means to deal with him and that he would send him to South Australia where there are a lot of flies, where it is very dusty and no one will visit him. The Applicant gave this evidence orally before this Court and was cross examined upon his assertions. It was not put to him in cross examination that his evidence was false, rather, the cross examination was directed to confirming that the immigration official was not the Tribunal member. The Applicant confirmed that the immigration official, who said these words to him, was male and was not the Tribunal member. However, the Applicant claimed that he believed the Tribunal member and the immigration official must be colluding together because, otherwise, how would the immigration official know that his application would be dismissed prior to the decision being handed down. Based on those assertions, the Applicant contended that the Tribunal decision must have been affected by apprehended bias.

2. The general test for apprehended bias is, as stated in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 (“NADH”) at [14]:

   “[W]hether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision”.

   For a complaint of apprehended bias to be meaningful:

   “[I]t must carry with it an assertion of the apprehension of a possibility of predisposition.”: (NADH at [20]).

3. Moreover, the mere fact that the Tribunal found against the Applicant does not, of itself, establish that the:

   “[C]onclusions had been reached with a mind not open to persuasions and unable or unwilling to evaluate all of the material fairly”: (NADH at [15]).

4. Whilst it is, of course, entirely inappropriate if such things were said to the Applicant by an immigration official, there is nothing to connect any words that were said to the Applicant in that context to the conduct of the Tribunal hearing by the Tribunal member, other than the coincidence of the timing claimed by the Applicant. There is no evidence before me to suggest that the Tribunal Member’s state of mind was in any way affected, let alone aware of the conversation attested by the Applicant. The Tribunal is independent of the Department insofar as it is vested with power to review decisions of the Department.

1. It is clear from the Tribunal decision that it was concerned to ensure that it had identified and considered all the Applicant’s claims and evidence.

2. The Tribunal proceeded, in the Findings and Reasons section of its decision, to provide reasons for its failure to be satisfied of the veracity of the Applicant’s claims and to explain why it was not satisfied that the Applicant’s evidence established the facts asserted. The Tribunal concluded that it could not be satisfied that the Applicant had suffered harm amounting to persecution for a Convention reason in the past, nor that there was a real chance that the Applicant would suffer persecution in reasonably foreseeable future if he were to return to the PRC. The claims before the Tribunal, its findings and the reasons for those findings are dealt with in detail above in these Reasons at paragraphs 17 to 44.

3. It is clear that the Tribunal was at pains to put to the Applicant as many of its concerns about the Applicant’s claims as were necessary to afford the Applicant an opportunity to respond.

4. In any event, I note that the Applicant does not suggest that the way in which the Tribunal member conducted the hearing caused him concern at the time.

5. Rather, the Applicant’s complaint is as a result of conclusions arising out of what he claims he was told by an immigration official causing him to believe that the Tribunal’s mind had been made up prior to the hearing. I do not accept that contention. There is nothing on the face of the Tribunal decision to suggest the decision had been reached with a mind not open to persuasion or unable or unwilling to evaluate all the material fairly.

6. In the circumstances, this ground is rejected.

Ground 2 - The Tribunal misconceived the role of the hearing and failed to afford a hearing of the character contemplated by the Migration Act

1. There are no particulars identified by the Applicant in support of this ground. No copy of the transcript was tendered by the Applicant to suggest that the Tribunal had in any way erroneously noted its record of the exchanges it had with the Applicant at the hearing.

2. On 30 May 2005, the Tribunal invited the Applicant to attend a hearing, give oral evidence and present arguments in support of his claims. That invitation was sent pursuant to s.425 of the Act and complied, relevantly, with ss.425A and 441A of the Act. The invitation also requested the Applicant to send any new documents or written arguments that he wished the Tribunal to consider. The Applicant’s response that he wished to attend the hearing was received by the Tribunal on 9 June 2005.

3. On 13 June 2005, the Applicant’s solicitor provided further information and submissions in support of the application for review. The letter noted that the solicitor had taken instructions from the Applicant in relation to the reasons for refusal of his application by the Delegate. The letter noted that the Applicant had instructed his solicitor that “the information I gave to the Immigration Department is true”.

4. The Applicant gave oral evidence to the Tribunal on 27 June 2005, which was referred to by the Tribunal in some detail in the Claims and Evidence section of its decision. The Tribunal made note in its decision that it had put to the Applicant matters of concern to it and provided the Applicant an opportunity to respond. The Tribunal noted in the  Findings and Reasons section of its decision that it had put its concerns to the Applicant and had failed to be satisfied by the explanations proffered by the Applicant.

5. The Tribunal noted in its decision that it put to the Applicant a number of times that his testimony was not making sense and that it was not credible. The Tribunal found that the Applicant did not clarify his testimony or otherwise address the Tribunal’s concerns.

6. The Tribunal made findings that were open to it on the material and evidence before it and in respect of which it provided reasons. Ultimately the Tribunal was not satisfied that the Applicant had suffered harm amounting to persecution for a convention reason in the past. Nor was it satisfied that there is a real chance that the Applicant will suffer persecution in the reasonably foreseeable future.

7. In the circumstances, there is nothing to suggest that the Tribunal misconceived its role in the conduct of its review, either before, during or after the hearing. The Tribunal complied with the requirements of the Migration Act in the conduct of its review process.

8. Accordingly, this ground is rejected.

Ground 3 - The Tribunal failed to provide particulars under s.424A of the Migration Act

1. There are no particulars provided in support of this ground.

2. The Applicant’s solicitor wrote to the Tribunal on 13 June 2005, prior to the hearing before the Tribunal, confirming that the information that the Applicant had given to the Department “is true”. In those circumstances, in accordance with the authorities, the information provided by the Applicant to the Department was information given to the Tribunal for the purpose of its review. (M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25]; SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 at [5]-[6]). Section 424A(3)(b) of the Act specifically excludes from the requirements of s.424A(1) of the Act any information that the Applicant gave to the Tribunal for the purposes of his review application.

3. Accordingly, this ground is rejected. 

Ground 4 - The Tribunal came to its state of satisfaction unreasonably, illogically and irrationally in a manner and therefore fell into jurisdictional error by not dealing with the question presented by ss. 36 and 65 of the Migration Act

1. There are no particulars provided in support of this ground.

2. Irrationality is no different to illogicality. The authorities have held that want of logic does not of itself constitute jurisdictional error (NACB v Minister for Immigration and Indigenous Affairs [2003] FCAFC 23 at 24-30; VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 at [18]; WAJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 79 at [22]).

3. In the case before this Court, the Tribunal’s reasons and findings were based on the evidence before it and the reasoning process was rational.

4. Accordingly, this ground is rejected

Conclusion

1. The findings made by the Tribunal were open to the Tribunal on the material before it. Reasons were provided by the Tribunal for those findings that were adverse to the Applicant and are referred to above in these Reasons.

2. The Tribunal’s decision is not effected by jurisdictional error and is a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

3. The applications before this Court are dismissed with costs.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S Riddle

Date:  19 December 2005