SZHFH v Minister for Immigration & Anor - [2007] FMCA 124

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHFH v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 124

MIGRATION – RRT decision – Chinese applicant claiming persecution for political activities – disbelieved by Tribunal – no failure to warn about critical issues – no jurisdictional error found.

Migration Act 1958 (Cth), ss.424A(1), 424A(3)(a), 425, 425(1), 474, 476

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Re Ruddock (in his capacity as Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592

Applicant:

SZHFH

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2684 of 2006

Judgment of:

Smith FM

Hearing date:

25 January 2007

Delivered at:

Sydney

Delivered on:

25 January 2007

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr G T Johnson

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2684 of 2006

SZHFH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 21 September 2006, which was listed for a final hearing today on whether the applicant is entitled to relief under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 27 July 2006 and handed down on 17 August 2006. The Tribunal affirmed a decision of a delegate made on 17 March 2005, refusing to grant a protection visa to the applicant.
The applicant sought review of the delegate’s decision by the Tribunal on 21 April 2005. The delay in resolving that application is in part accounted for by an earlier decision of the Tribunal handed down on 30 August 2005, which was set aside by consent order of this Court on 29 March 2006. The reasons for the consent order are not stated in the material before me.
The Court’s jurisdiction under s.476 is “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but the powers of the Court are confined by s.474, so that the Court does not have power to set aside the decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed nor whether he qualifies for a protection visa.
The applicant arrived in Australia on a three month temporary business visa in December 2004. On 24 January 2005 an application for a protection visa on his behalf was lodged by an agent, Priscilla Yu. The applicant’s claims for seeking protection in Australia against return to the People’s Republic of China were explained in a statutory declaration which narrated a history of persecution. This was sufficiently summarised by the delegate:
The applicant is a builder from [city] in [province], China. He claims that the mistress of the government official refused to pay him on completion of an assignment. The solicitor who volunteered to help him had a history of fighting government corruption which got him arrested, detained and eventually sent to a labour camp. The applicant claims to have unsuccessfully demanded that the authorities release the solicitor. He claims that he then organised open protests in town and petition signing. One demonstration lasted one week with armed police forming a wall to block protestors from entering a government building. The applicant claims to have been detained on 16 August 2004, in relation to these activities, during which time he was tortured and ultimately forced to sign a confession. After this time he persisted in distributing anti government propaganda. The applicant claims that he was put on a “blacklist” and forced to leave China in December 2004, for his own safety. The applicant fears political persecution on return to China.
The delegate refused the application and gave reasons. She found the applicant’s history to be implausible. In particular, she thought that a person with no previous political background would not “launch into aggressive, organised, public political action against both provincial and central governments on behalf of the arrested solicitor”. She made a finding: “I do not accept that the applicant has an adverse political profile in China, such that he would be at risk of persecution on return there”. She also referred to other aspects of the factual claims made by the applicant which pointed against the credibility of his claimed political activism, including his ability legally to depart China on a passport in his own name.
The application for review was lodged by Priscilla Yu on behalf of the applicant, and was accompanied by a submission which argued against the adverse factual conclusions reached by the delegate and repeated the claims made by the applicant. No supporting material was provided to corroborate the applicant’s claims, neither to the Department nor eventually to the Tribunal.
The applicant attended a hearing held by the Tribunal as previously constituted on 3 August 2005, and attended a second hearing held by the Tribunal as ultimately constituted on 19 July 2006. Transcripts of both of those hearings are in evidence before me and I have read them.
The Tribunal as first constituted questioned the applicant about aspects of his claims which ultimately led it to disbelieve his whole history. At the end of that hearing the member expressly told the applicant:
I’ve had some difficulty in accepting some of your answers regarding the exit from China in particular. Is there anything you’d like to say?
At the second hearing, the applicant was more closely questioned about the events of his claimed protest actions, his arrest, and his subsequent petitioning activities. It must have been apparent to the applicant from this questioning that the Tribunal was not necessarily accepting his history. At several points, the transcript shows the Tribunal raising in an implicit way a difficulty in accepting particular points. For example:
Tribunal Member: Okay, so Mr Chen helped you, he was arrested and so you decide to organise a protest action? It sounds like a big leap. Why did you want to get involved in protest action for Mr Chen’s arrest? I mean, people get arrested all the time, why would you want to have a demonstration organised for Mr Chen?
Somewhat later the Tribunal said:
Tribunal Member: And what possible motive your people from your village have in demonstrating in front of PSB with you? After all, why would they care if you’re not paid?
The Tribunal made clear its difficulty accepting the plausibility of the applicant’s claim that the police did not connect the applicant with the circulation of 400 petitions supporting Mr Chen. It also made clear that it had difficulty accepting that he was able to get exit permissions, if indeed he was a person of interest to the PSB.
In its statement of reasons, the Tribunal correctly identified the claims made by the applicant. It summarised his evidence to both hearings, and it pointed to matters, such as those I have referred to above, explaining its general conclusion:
For all the above reasons, the Tribunal does not accept that the applicant was involved in participating in or organising any form of demonstration in China. The Tribunal does not accept that the applicant was arrested and detained for that reason in China. The Tribunal does not accept that he organised and distributed petitions in China. The Tribunal does not accept that he was investigated or wanted by PSB or any other organ of the Chinese government for the reason of having participated in demonstrations, for distributing petitions or for expressing his political opinion in China. The Tribunal does not accept that the applicant departed China for the reasons he has provided. The Tribunal does not accept that the authorities are interested in the applicant for organising or participating in political activities or for espousing his political opinion in China. The Tribunal does not accept that the applicant has been harmed in the past or that there is a real chance that he will be harmed for a Convention reason if he were to return to China now or in the reasonably foreseeable future. The Tribunal is satisfied that the applicant’s fear of persecution is not well‑founded.
I consider the Tribunal’s reasoning pointed to rational and cogent defects in the history presented by the applicant, which justified its adverse conclusions.
The Tribunal’s decision record and statement of reasons was forwarded to the applicant’s agent under cover of a letter dated 17 August 2006, which apparently was sent when nobody attended the handing down ceremony to which the applicant was invited for that day. Unfortunately, the covering letter incorrectly stated that “the Tribunal has decided that you are refugee”. However, in my opinion it should have been apparent to the applicant’s agent from the enclosed decision record and reasons that the covering letter made a mistake. The applicant has not presented any evidence to the Court from himself or his agent to give any significance to that mistake. It was corrected by a subsequent letter to the applicant’s agent dated 1 September 2006.
I have considered all the procedures and reasoning followed by the Tribunal, and I am unable to identify any jurisdictional error affecting its decision.
The applicant’s grounds of review in his application are repeated and recast in his amended application. It contains three grounds:
1.The Tribunal failed to comply with its obligations under Section 424A(1) of the Act.
Particulars:
a.In my case, the Tribunal’s decision has relied on the “information”, which is not only the so‑called “independent country information” but also the one that has directly in relation to my application.
b.However, the Tribunal failed to provide me the “information” that it has used as the reason, or part of reasons, in making its finding; and
c.The Tribunal failed to ensure, as far as is reasonably practicable, that I have genuinely understand why it is relevant to the review; and
d.The Tribunal failed to invite me to comment on it.
2.The Tribunal failed to comply with its obligations under Section 425 of the Act.
Particulars:
a.According to the summary in relation to the Tribunal’s hearing by the Presiding Member, I indeed, tried my best to give detailed claims in support of my review application, and
b.The Presiding Member put some questions to me; but unfortunately, the Presiding Member rarely indicated me clearly, and particularly, failed to ensure me to realise or understand, what the actual issues arising from the review would be; and
c.I, therefore, have in fact been deprived of the common right entitled by the Section 425 of the Act.
d.As a matter of fact, after the Tribunal’s hearing, I thought that my claims had already been accepted by the Tribunal and that the Presiding Member would not have any further issues or questions against my review. So, while the Tribunal has mistakenly attached the wrong notification letter together with my decision record at the beginning, I believed that the decision record should be wrong but not the notification letter.
3.The Tribunal made its decision with bias; and further, the Tribunal failed to consider independent country information, properly and fairly.
Particulars:
a.As a matter of fact, my claims have strongly been supported by many independent country information, such as Human Right Report from Asian Watch or Country Report of International Amnesty or even US Department Human Rights Report;
b.However, what the Presiding Member did was just picking up some pieces of information, improperly and unfairly, simply for the purpose to refuse my claims; and
c.I have to emphasize that “…the Tribunal cannot just disregard evidence because it does not fit the Tribunal’s hypothesis…”.
(citations omitted)
In relation to Ground 1, neither the applicant nor Counsel for the Minister nor I were able to identify any information which formed a part of the reasons of the Tribunal for affirming the delegate’s decision which came within the Tribunal’s obligations under s.424A(1). In particular, I note that its reliance on general information did not give rise to obligations under that provision, by reason of the provisions of s.424A(3)(a). Moreover, although the Tribunal might not have been bound to do so, it put the critical aspects of that information to the applicant in the course of the hearing.
In relation to Ground 2, counsel for the Minister took me to the recent decision in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592 (“SZBEL”). In this case, the High Court found that the Tribunal had not accorded procedural fairness, and at [37] suggested that a breach of obligations arising under s.425 of the Migration Act also occurred, because the Tribunal failed sufficiently to alert an applicant to a factual issue upon which it ultimately decided the case against the applicant. This was its opinion that part of his history concerning what had happened on board his ship was implausible. The Court relied upon the principle that an opportunity of being heard ordinarily requires “the party affected to be given the opportunity of ascertaining the relevant issues” arising in the Tribunal’s review of the delegate’s decision (see [32]‑[40]). It explained at [43]:
43The delegate had not based his decision on either of these aspects of the matter. Nothing in the delegate’s reasons for decision indicated that these aspects of his account were in issue. And the Tribunal did not identify these aspects of his account as important issues. The Tribunal did not challenge what the appellant said. It did not say anything to him that would have revealed to him that these were live issues. Based on what the delegate had decided, the appellant would, and should, have understood the central and determinative question on the review to be the nature and extent of his Christian commitment. Nothing the Tribunal said or did added to the issues that arose on the review.
The High Court’s judgment has to be understood in the light of the particular facts of that case, and their Honours’ general observations should also be so considered. The general observations include:
47First, there may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. (emphasis in original)
I would not understand the High Court in this paragraph of SZBEL, or elsewhere in its reasons for deciding the particular case, to be retreating from previous statements in the High Court which emphasised that it is not a duty on the Tribunal to put to an applicant perceived flaws in an applicant’s case in a manner which in adversarial litigation would be required by the rule in Browne v Dunn. For example, in Re Ruddock (in his capacity as Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 (“Applicant S154”) at [58], the High Court said:
[58]It would have been erroneous for the tribunal to have represented at the hearing that a particular piece of evidence or argument had been accepted and then to have rejected it in the decision in circumstances where, but for the representation, the prosecutrix could have mended her hand. It would also have been erroneous for the tribunal to have relied on a particular conclusion about the material before it which was not open on the material. But it was not erroneous for the tribunal not to have pressed the prosecutrix more than it did about the rape claim. A cross‑examiner in a notional criminal case in which the Crown was charging a man with rape might, if that cross‑examiner wanted to be as sure of success as possible, have had to have adopted a much more detailed and forceful style of questioning than the tribunal member did here. But in proceedings of the type which he was conducting, the tribunal member was not obliged to go further than he did. In particular he was not obliged to go even further than a cross‑examiner endeavouring to comply with the rule in Browne v Dunn would have to do, and seek a detailed amplification of the prosecutrix’s account of the rape including the fullest and most minute particulars she could remember, together with an explanation of her failure to give that account on every earlier occasion when that account might conceivably have been given. The tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which the applicant chooses not to embark on.
There are other statements in Applicant S154 which illuminate the extent to which the High Court expects Tribunals to afford an applicant the opportunity to “give evidence and present arguments relating to the issues arising in relation to the decision under review” (see s.425(1)). Similar statements were also made, for example, in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187] and Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [76] and [208]. Consistent with these statements is the recent observation by the Full Court in Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 at [26]:
26Proceedings before the Tribunal are inquisitorial rather than adversarial. A Tribunal member conducting an enquiry is obliged to be fair. However, the Tribunal is not in the position of a contradictor of a case being advanced by an applicant. In a case such as that brought by the appellant under his application for review to the Tribunal, it was for him to advance whatever evidence or argument he wished to advance and for the Tribunal to decide whether his claim that he was a refugee, within the meaning of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (‘the Refugees Convention’) had been made out. The Tribunal was not obliged to prompt and stimulate an elaboration which the appellant may have chosen not to embark upon. The rule of fairness expressed in Browne v Dunn (1894) 6 R 67 has no application to proceedings in the Tribunal (per Gummow and Heydon JJ in Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte applicant S154/2002 (‘Re Ruddock’) (2003) 201 ALR 437 at [57]‑ [58]).

In the present case, I have carefully considered the reasoning of the delegate which was provided to the applicant, the submission which accompanied his application for review, and the transcript of the hearing before the Tribunal, and I consider that at all stages the applicant was sufficiently alerted to the issues facing him in his application for review before the Tribunal, and to the possibility that the Tribunal might regard his history of political activism as implausible for the reasons which were ultimately given by the Tribunal.
The applicant himself in his amended application and in his submissions to me, was unable to identify any issue of which he claimed to have been insufficiently warned. Nor has he presented any evidence or pointed to anything in the evidence before me to support the allegation that he was misled by the Tribunal or was led to think that “my claims had already been accepted by the Tribunal”.
In his oral submissions, the applicant claimed that this was the effect of the mistaken letter sent after the handing down of the decision. However, even if I accepted his unsworn assertion, I do not consider that any breach of procedural fairness of statutory obligation vitiating the Tribunal’s decision could have occurred at that point in the Tribunal’s procedures.
In relation to Ground 3, I can identify no support in any of the material before me for an allegation of bias, whether actual or apprehended. The applicant has been unable to point me to any such evidence. Nor has he been able to give any substance to his criticisms of the Tribunal’s use of independent country information, so as to establish any jurisdictional error in that respect.
For the above reasons I am not satisfied that the Tribunal’s decision is affected by jurisdictional error. I consider that it is a privative clause decision, and the application should be dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 16 February 2007