SZGVQ v Minister for Immigration
[2007] FMCA 1897
•19 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGVQ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1897 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal complied with s.424A of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal considered the applicant’s evidence – whether the Refugee Review Tribunal was biased. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A; 424A(1); 424A(3); 424A(3)(b); 425; 474 |
| Abebe v Commonwealth of Australia (1999) 162 ALR 1 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration v Jia Legeng [2001] HCA 17; 205 CLR 507 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 WABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286 Refugee Review Tribunal, Ex parte H (2001) 75 ALJR 982 Livesey v New South Wales Bar Association (1983) 151 CLR 288 |
| Applicant: | SZGVQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 127 OF 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 8 November 2007 |
| Date of last submission: | 8 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 19 November 2007 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Solicitors for the Respondent: | Mr L. Leerdam, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 127 of 2007
| SZGVQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant claims to be entitled to a protection visa by reason of a fear of persecution from the Public Security Bureau (“the PSB”) in the People’s Republic of China (“the PRC”) by reason of his political opinion or imputed political opinion in organising public demonstrations and attempting to establish a farmers union.
The Applicant is a male citizen of the PRC and arrived in Australia on 31 July 2004.
The Applicant’s Protection Visa Application
On 31 August 2004, the Applicant lodged an application for a protection visa with the then Department of Immigration and Multicultural and Indigenous Affairs.
The Applicant provided a statutory declaration in support of that application.
The Applicant claimed that on 21 October 2003 he and his employer organised and participated in a demonstration of about 200 people against the forcible sale of land of a customer of the Applicant’s employer by corrupt officials who failed to respect and protect basic human rights of the “ordinary farmers in the future”. The Applicant stated that the demonstration lasted three days and ultimately the forcible sale of land was withdrawn. The Applicant stated that this victory gave the Applicant and his employer a local profile as a result of which the Applicant and his employer organised a farmers union.
In the course of seeking to establish their farmers union, the Applicant stated that he and his employer visited several government authorities “such as the People’s Congress, the Office of the local government, the Agriculture Bureau, the official farmer’s association, and even the PSB.” The Applicant stated that it became impossible for them to establish their own farmers union so they decided to organise another demonstration “solely for the purpose to have a legal permit for establishment of our own farmers union, because it was the common right given by the Chinese constitution.” The Applicant stated that the demonstration commenced on 5 April 2004 and obtained wide support from local farmers and their relatives. The Applicant stated that the following week nearly 1000 people joined the demonstration that took place “in front of local government in Jiangjing Town.”
The Applicant stated that at midnight on 6 April 2004 his home was surrounded by police and was thoroughly searched and he and his employer were both detained by the PSB. The Applicant stated that from that time onwards he was subjected to interrogation many times, and forced to make confessions about his “anti-government demonstration”. The Applicant also stated “we were subjected to physical torture and mistreatment”.
The Applicant claimed that his family paid 100,000 RMB to secure his release on 11 May 2004, following which he was required to report weekly to the PSB and accept investigation at any time.
The Applicant stated that following his release he secretly left his home with the assistance of another and went to Shenyang City where he was assisted to leave the country.
The Applicant claimed to be on a black list of the PSB for his failure to comply with his reporting conditions and that his wife and parents continued to be subjected to investigation by the PSB. The Applicant claimed that the PSB had informed his family during the investigation that he was regarded “as the most important leader in organization of the anti-government demonstration for the purpose to establish anti-government organization.”
The Delegate’s Decision
On 6 January 2005, a delegate of the Department (“the Delegate”) refused the Applicant a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations. The Delegate found that the Applicant’s claims were uncorroborated and much of the information was “broad, lacking in relevant detail and credibility.” The Delegate also noted that the Applicant stated in his protection visa application that he departed the PRC legally on 28 July 2004 on a passport issued on 27 October 2003. The Delegate noted that independent country information indicated that Chinese nationals who depart the PRC legally “have been thoroughly vetted by security officials.” That led the Delegate to conclude that the Applicant is not a person of interest to the authorities.
The Earlier Constituted Refugee Review Tribunal Decision
On 8 February 2005, the Applicant lodged an application for review of the Delegate’s decision with the Refugee Review Tribunal. The Applicant provided a letter in support of that application in which he stated that his protection visa application made it clear that he left the PRC having changed his personal details, including his name, because it would have been impossible for him to leave the PRC if he had used his “genuine name” because he was on the black list of the PSB. The Applicant provided a certified copy of his Chinese identification card and a certified copy of his marriage certificate in support.
On 4 March 2005, the Refugee Review Tribunal wrote to the Applicant informing him that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The Applicant was then invited to come to a hearing on 19 April 2005 and to send any new documents or written arguments he wished the Tribunal to consider. In response to this invitation, the Applicant sent further documentary material that he alleged included an invoice to him for the cost of his detention and the payment for bail for medical treatment.
On 19 April 2005, the Refugee Review Tribunal wrote to the Applicant’s migration agent requesting that the Applicant attend a general practitioner for examination and the preparation a report. The Applicant did so and a report was received from a Dr Lin stating that he had examined the Applicant on 1 May 2005 and found old scars on his chest, rib area and right thigh “consistent with healed skin lacerations received about 12 months ago.”
On 17 May 2005, the Refugee Review Tribunal wrote to the Applicant inviting him to comment upon information that suggested that the Applicant’s problems were confined to the Jiangjing area and that it was “not difficult to move to a new town in China, so long as the town is relatively small”.
On 27 May 2005, the Refugee Review Tribunal received a response to that letter form the Applicant in which he provided independent country information that he submitted disclosed that no matter where he stayed in the PRC he would be subjected to persecution because he was on the black list of the PSB.
On 23 June 2005, the Refugee Review Tribunal affirmed the Delegate’s decision to refuse the Applicant a protection visa.
The Reconstituted Tribunal Decision
On 27 July 2006, Federal Magistrate Smith remitted the review to the Refugee Review Tribunal (“the Tribunal”) for determination according to law.
On 15 September 2006, the Tribunal wrote again to the Applicant informing him that it had considered material before it in relation to his application but was unable to make a decision in his favour on that information alone. The letter invited the Applicant to come to a hearing on 31 October 2006 and to send any documents or written arguments he wished the Tribunal to consider.
On 22 September 2006, the Applicant wrote to the Tribunal in response to that letter in which he claimed that his wife had committed suicide on 18 May 2006 because she had become the major target of the police during the two year period since May 2004 when the Applicant left the PRC. The Applicant’s letter also stated that he left the PRC on a passport with the name of “Li Wen Jun” instead of his real name, and for that reason police could not find records of his departure and therefore concluded that he was still in the PRC. The Applicant’s letter stated that his wife was interrogated by the police for a whole day and “was subjected to terrible mistreatments”. He stated that “owing to huge mental pressure”, his wife committed suicide by “jumping down from high building” on 18 May 2006. The Applicant’s letter enclosed a document that he claimed was a certificate of his wife’s death.
The Applicant attended a hearing before the Tribunal reconstituted, on 31 October 2006.
The Tribunal reproduced the Applicant’s written claims in support of his protection visa application in its decision. The Tribunal identified the documents provided by the Applicant in support of his review application. The Tribunal identified evidence given by the Applicant at the earlier Tribunal hearing on 19 April 2005 and noted Dr Lin’s medical certificate that he had a scar on his chest and right thigh consistent with healed wounds. The Tribunal also noted the Applicant’s letter dated 22 September 2006 in which he claimed his wife had committed suicide, together with the alleged death certificate.
The Tribunal then identified the oral evidence given by the Applicant at the hearing before it on 31 October 2006 in which he purported to expand upon his earlier claims. The Tribunal noted various questions it asked the Applicant about his claims and evidence and noted the Applicant’s responses.
The Tribunal in its decision identified in its decision inconsistencies that it put to the Applicant about various aspects of his evidence and noted his responses.
On 6 November 2006, pursuant to s.424A of the Migration Act 1958 (Cth) (“the Act”), the Tribunal wrote to the Applicant identifying information that the Tribunal stated may be the reason for affirming its decision under review.
The Tribunal’s s.424A letter is not identified by paragraph or numbers or by separate issues. However, a careful reading of the letter suggests that there were four particular inconsistencies in evidence earlier provided by the Applicant with evidence given orally to the Tribunal on 31 October 2006. Whilst s.424A(1) requires, inter alia, that such a letter ensure that an applicant, as far as reasonably practical, understand the relevance of the letter, it is clear from the Applicant’s meaningful response, dated 20 November 2006, that the Applicant understood the relevance of the information identified by the Tribunal in its letter dated 6 November 2006. The Applicant sought to address each of the four matter raised by the Tribunal relating to inconsistencies in his evidence.
The Tribunal found that the Applicant departed the PRC using a false passport, however, found that he was a citizen of the PRC.
The Tribunal identified aspects of the Applicant’s evidence that it found to be unsatisfactory and which led it to conclude that “the applicant lacks credibility and his claims cannot be accepted.” The Tribunal found the Applicant’s evidence was “inconsistent, contradictory and implausible.” The Tribunal identified those aspects of the Applicant’s evidence that caused it concern and which had been identified by it in its s.424A letter. The Tribunal noted the Applicant’s responses.
Ultimately, the Tribunal concluded that it was not satisfied that the Applicant was involved in the establishment of a farmers union in the PRC and was not satisfied that the Applicant had attended a demonstration in 2003 or 2004. The Tribunal was not satisfied that the Applicant was detained, assaulted and released because of bribes paid by his family and was not satisfied that the Applicant was required to report weekly to the PRC because of his political involvement.
The Tribunal did accept that the Applicant had suffered injuries 12 months before attending the Tribunal in 2005 in accordance with Dr Lin’s evidence. However, the Tribunal did not accept that his wounds were inflicted on him by the police whilst in police custody in April/May 2004.
Further, the Tribunal did not accept that the Applicant departed the PRC in a different name because he was of adverse interest to Chinese authorities by reason of actual or imputed political opinion. The Tribunal concluded that there was “no credible evidence” upon which it could find that the Applicant was at risk of suffering serious harm in the reasonably foreseeable future if he were to return to the PRC.
Further, the Tribunal was not satisfied that the Applicant’s wife was harassed by authorities as claimed. Accordingly, the Tribunal affirmed the decision under review.
The Proceeding before this Court
On 15 January 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision pursuant to s.39B of the Judiciary Act 1903 (Cth).
On 18 April 2007, the Applicant filed an amended application in which the Applicant claimed that the Tribunal’s decision was affected by jurisdictional error. The Applicant confirmed that he relied upon the grounds referred to in his amended application filed on 18 April 2007. They are as follows:
1. “There was procedural error in the Tribunal’s decision constituting an absence of natural justice.”
2. “The Presiding Member failed to consider my evidences, properly and fairly.”
3. “The Presiding member of The Tribunal (“the Presiding Member”), failed to comply with her obligations under s.425 of the Act.”
4. “In summary, I have never ever agreed that my application has been assessed by the Tribunal fairly and carefully.”
The Applicant appeared unrepresented at the hearing before this Court, although had the assistance of a Mandarin interpreter.
Because the Applicant had failed to file and serve change of contact details, the Applicant had not received a copy of the First Respondent’s submissions. However, time was taken at the hearing for those submissions to be interpreted for the assistance of the Applicant.
The grounds of the Applicant’s amended application were also interpreted for the Applicant’s assistance and he was invited to say whatever he wished in support of his application for judicial review. The Applicant restated the matters referred to in his amended application and said that the decision was unfair and biased.
The grounds and their particulars are considered below.
Ground 1 - alleged failure to comply with s.424A of the Act
This ground was accompanied by particulars alleging that the Tribunal failed to comply with its obligations under s.424A of the Act and asserting that the Tribunal had failed to have regard to the Applicant’s responses to its s.424A letter. The particulars also complain about the selective matters referred to by the Tribunal in its s.424A letter and asserted that such selection suggested bias on the part of the Tribunal member.
The Applicant appears to contend that the Tribunal’s s.424A letter should have included the information about notes prepared by the Applicant and his employer advertising the 5 April 2004 demonstration.
However, the information about the notes was given by the Applicant to the Tribunal on 31 October 2006 and is therefore information provided by the Applicant in support of his review application. Such information is excluded from the obligations of s.424A(1) of the Act, by reason of s.424A(3)(b) of the Act. Accordingly, there is no enlivenment of the obligations of s.424A(1) of the Act.
The Applicant also contends that the Tribunal selected pieces of information to which it referred in its s.424A letter.
Section 424A(1) of Act requires the Tribunal to give to the Applicant information that it decides may be part of the reason for affirming the decision under review that is not otherwise excluded by s.424A(3) of the Act. It is a matter for the Tribunal in the course of evaluating the evidence, material and information before it, what is the information that may cause it to affirm the decision under review and whether such information enlivens the obligations of s.424A(1) of the Act.
It was the inconsistencies in the Applicant’s evidence in relation to four particular matters that the Tribunal decided would be part of the reason for affirming the decision under review. The inconsistencies were given to the Applicant in the s.424A letter and the Applicant gave a meaningful written response.
A fair reading of the Tribunal’s decision refers specifically to the inconsistencies identified to by the Tribunal in its s.424A letter and the responses provided by the Applicant. A fair reading of the Tribunal’s decision makes it clear that it was the inconsistencies and the failure to satisfy the Tribunal in relation to explanations about those inconsistencies that led the Tribunal to conclude that the Applicant “lacked credibility and his claims could not be accepted.”
Ultimately, it is for the Tribunal to make findings in respect of various claims before it based on the evidence and material before it. The Tribunal is not obliged to accept the responses of the Applicant to concerns raised by it in its s.424A letter.
The findings and conclusions made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons, albeit obliquely.
Accordingly, Ground 1 is not made out.
Ground 2 - alleged failure to consider Applicant’s evidence
Ground 2 asserts that the Tribunal failed to consider the Applicant’s evidence properly and fairly.
Ground 2 is supported by particulars in which the Applicant reproduced his letter to the Tribunal in which he alleged that his wife had committed suicide because of interrogation suffered by her at the hands of police in seeking the Applicant.
The Applicant objected to the Tribunal describing his claims of her difficulties as being “simply harassed by the Chinese authorities”. This complaint is in essence that the Tribunal failed to accept the Applicant’s evidence that his wife had committed suicide because of conduct by the authorities in the PRC. That is a finding of fact which was open to the Tribunal on the evidence and material before it and for which it provided reasons.
This ground otherwise seeks merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 162 ALR 1; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [10]).
At the heart of the Tribunal’s rejection of the Applicant’s claims is the Tribunal’s adverse credibility findings in respect of the Applicant’s evidence. The Tribunal’s characterisation of the Applicant’s claims about his wife as ‘harassment’ rather than ‘interrogation’ does not suggest, to my mind, any failure by the Tribunal to understand the nature of the Applicant’s claims. Rather, the Tribunal did not believe the Applicant generally in respect of his claims.
Ultimately, credibility findings are a matter of fact for the Tribunal, par excellence (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67]). The Tribunal’s adverse credibility findings were open to it on the evidence and material before it and for which it provided reasons.
Accordingly, Ground 2 is rejected.
Grounds 3 - alleged breached of s.425 of the Act
Ground 3 is supported by particulars that allege that the Tribunal did not provide the Applicant with a “good and real opportunity” to give his oral evidence and to present his arguments. The particulars assert that the presiding member gave the Applicant “strong pressure” in that she made the Applicant believe that her tasks at the hearing were “to try every means to pick inconsistencies or contradictions or implausibility” from the Applicant’s claims. The Applicant stated that in such a situation it was impossible for him to have a good and real opportunity to give his oral evidence and present his arguments.
Such allegations would require a transcript of the Tribunal hearing, at least. The Applicant was given leave on two occasions by this Court to file evidence in support of his application by way of affidavit evidence, including any transcript of the Tribunal hearing. No evidence has been filed by or on behalf of the Applicant.
A fair reading of the decision makes it clear that the Tribunal identified the claims made by the Applicant, explored its concerns about various evidence given by the Applicant and noted the Applicant’s responses. The Tribunal complied with its statutory obligations under s.424A(1) of the Act by identifying in writing to the Applicant information that may be part of the reason why it would affirm the decision under review, explained the relevance of that information and invited the Applicant to comment.
A fair reading of the Tribunal’s decision discloses that the Tribunal had regard to the Applicant’s responses to the matters raised by the Tribunal in its s.424A letter.
Moreover, the Tribunal’s decision states that, at the conclusion of the hearing, it asked the Applicant if there was anything further he would like to add in relation to his application. The Tribunal noted that the Applicant stated that his wife was now dead and he pitied himself, but that he did not wish to add anything further.
A fair reading of the Tribunal’s decision makes it clear that the Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review.
In the circumstances, the Applicant’s complaint in Ground 3, that he was not given a good and real opportunity to give oral evidence, is not made out.
Ground 4 - bias
In relation to the Applicant’s allegation of bias, a fair reading of the Tribunal’s decision does not suggest that the Tribunal approached the making of its decision other than with a mind open to persuasion. The Court adopts the written submissions of the First Respondent in relation to the allegation of bias. The submissions are comprehensive and accurate and the Court adopts them as part of its reason for rejecting the Applicant’s allegation of bias on behalf of the Tribunal.
“35. Actual bias can be said to exist where the RRT is so committed to a conclusion already formed as to be incapable of alteration, whatever arguments or evidence may be presented: Minister for Immigration v Jia Legeng [2001] HCA 17; 205 CLR 507 at [71] to [72]. Further, a case of actual bias is seldom made out by reference solely to the reasons for decision and no inference of bias or prejudgment can be drawn from the mere fact of adverse findings in the RRT’s reasons: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286 at [3].
36. Apprehended bias will exist where a fair-minded lay observer, who is properly informed as to the nature of the proceedings, the matters in issue and the conduct of the RRT, would not apprehend that the RRT member might not bring an impartial mind to the resolution of the question to be decided: Refugee Review Tribunal, Ex parte H (2001) 75 ALJR 982 at [27]; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294
37. There is no bias for the allegation of bias, actual or apprehended, contained in the application. Contrary to the applicant’s assertion, he was given a fair opportunity to present his case to the RRT. He was also given an opportunity to comment on the RRT’s concerns about inconsistencies in his evidence.”
Accordingly, Ground 4 is rejected.
Conclusion
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The proceeding before this Court commenced by way of application filed on 15 January 2007, is dismissed with costs.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 19 November 2007
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