SZILR v Minister for Immigration - [2007] FMCA 1002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZILR v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1002

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 424A(1); 474; pt.8 div.2

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
NADH of 2001 & Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668

Applicant:

SZILR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG787 of 2007

Judgment of:

Emmett FM

Hearing date:

20 June 2007

Date of last submission:

20 June 2007

Delivered at:

Sydney

Delivered on:

29 June 2007

REPRESENTATION

Applicant appearing on his own behalf

Counsel for the Respondent:

Mr B. O’Donnell

Solicitors for the Respondent:

Ms Z. McDonald, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG787 of 2007

SZILR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated

16 January 2007 and handed down on 30 January 2007 (“the Tribunal”).
The applicant claims to be a citizen of the People’s Republic of China (“the PRC”) (“the Applicant”).
On 31 August 2005, the Applicant arrived in Australia, and lodged a protection visa application with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) on

12 September 2005.
In his protection visa application, the Applicant stated that his family were poor farmers and his formal education finished at primary school. The Applicant stated that at age 17 his father arranged for him to learn painting from Mr Lin who worked for the Fuqing No.2 Construction Corporation (“the F2CC”). The Applicant stated that he was Mr Lin’s apprentice from 1987 to 1990 and then became his assistant.
The Applicant claimed that in early 2004 Mr Lin was contracted by the F2CC to do a large paint job in a Fuqing mall. The Applicant stated that Mr Lin employed thirty painters for the job. The Applicant stated that under the contract for the job the F2CC would be responsible for providing worker’s compensation insurance for Mr Lin’s painters. The Applicant stated that the working conditions were unsafe and no insurance was provided. In December 2004, six painters fell and four were seriously injured, two died. The Applicant claimed that an investigation by government officials and F2CC concluded that the accident was the fault of the painters and as a result the F2CC refused to pay compensation to the painters and their families. The Applicant claimed that the accident was due to inadequate scaffolding and work conditions provided by F2CC. The Applicant stated that he and Mr Lin believed that the investigators into the accident had been bribed.
In early March 2005 the Applicant stated that he and Mr Lin organised a petition to protest over the accident and F2CC’s inaction. The Applicant claimed that the protests grew from about forty or fifty people to about four hundred to five hundred people and had the effect of significantly disrupting construction of the Fuqing mall.
The Applicant claimed that at the end of March 2005 police were sent in to suppress the protests resulting in the arrest of Mr Lin. The Applicant claimed that he escaped into hiding with a friend in Xiamen City. The Applicant claimed that after his escape police came to his home looking for him on several occasions because they considered him to be a “most important assistant” in organising protests.
The Applicant stated that a relative of his friend in Xiamen City arranged for him to leave the PRC in August 2005.
The Applicant claimed to fear persecution on the grounds of political opinion or imputed political opinion if he were to return to the PRC.
On 31 October 2005, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 28 November 2005, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal. On

31 January 2006, the Refugee Review Tribunal affirmed the decision of the Delegate.
On 21 July 2006, the Federal Magistrates Court of Australia remitted the matter, by consent, to the Refugee Review Tribunal for decision according to law.
On 23 August 2006, the Tribunal invited the Applicant to come to a hearing on 22 September 2006, to give evidence and present arguments. The Applicant attended the hearing before the Tribunal and gave oral evidence.
Following the hearing, the Tribunal wrote to the Applicant on

7 November 2006, pursuant to s.424A of the Act, to which the Applicant responded on 30 November 2006.
On 30 January 2007, the Tribunal handed down its decision affirming the Delegate’s decision.
The Tribunal’s decision is accurately summarised by counsel for the First Respondent in his written submissions as follows:
“13. The Tribunal made the following findings that were consistent with the applicant’s claims:
(1)     The applicant is a citizen of China (CB 127).
(2)The applicant was an apprentice to Mr Lin from 1987 to 1990 and later became his assistant (CB 127.9).
(3)The applicant was part of the painting crew employed by the F2CC for the Fuqing Chenglong Mall project. According to the contract with F2CC, F2CC was responsible for work safety and insurance in the event of injury. (CB 127.10)
(4)In December 2004, an accident occurred when six painters fell from collapsing scaffolding. Two died and four were seriously injured. (CB 128.1)
(5)Fuqing city held an investigation, which concluded that the painters had failed to follow safety procedures (CB 128.2).
(6)No compensation was paid to the painters or their families and there is at least a prima facie case that F2CC was liable to pay compensation (CB 128.2).
(7)The applicant spent eight months in hospital after he was injured in the accident (CB 128.4).
14. However, the Tribunal rejected the applicant’s claims in finding that:
(1)The Fuqing investigators were not bribed and did not fail to investigate the accident properly (CB 128.3).
(2)The applicant did not ask Mr Lin to arrange insurance (CB 128.2).
(3)The applicant did not significantly engage in protests and the preparation of leaflets and petitions after the accident, because he was in hospital and because he was functionally illiterate (CB 128.5). With the help of friends and relatives, the applicant may have assisted and supported the protest activities from his hospital bed (CB 128.6).
(4)The applicants involvement in the protest was not sufficient to make him of any real interest to the Chinese authorities. The protests were not regarded as anti-government by the authorities. The authorities had ample opportunity to arrest him while he was in hospital or in Xiamen and did not do so (CB 128.6).
(5)The applicant made a number of contradictory claims in his evidence (CB 128-129):
·    he claimed that the F2CC was responsible for insurance, but then claimed that Mr Lin was responsible for insurance;
·    he claimed that he and Mr Lin felt some responsibility for providing insurance but that his boss Mr Lin had told him to stop asking for insurance otherwise he would be sacked;
·    on a number of occasions he had asked both the F2CC and Mr Lin to buy insurance;
·    F2CC had told Mr Lin that if they didn’t stop asking about insurance the builder would give the contract to someone else.
As a result of these contradictions, the Tribunal did not find the applicant to be a credible witness (CB 129.2).
(6) The applicant was able to leave China because he was not regarded by the authorities as a person of interest (CB 129.3).
(7) The applicant had not played any significant role (if at all) in organising the protests. Even if he did, the Chinese authorities were not looking for him (CB 129.7).
(8) Given his limited education and functional illiteracy, the applicant does not have the leadership skills to allow him to emerge as a person of concern to the Chinese authorities. There is no evidence to support the applicant’s assertion that he would continue and/or widen his human rights protest activities if he returned to China. (CB 129.8-10)
15. As a result, the Tribunal was not satisfied that the applicant has a well founded fear of persecution and thus affirmed the delegate’s decision (CB 130).”

Legislative framework

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.
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.
Australia has protection obligations to a refugee on Australian territory.
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.”
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 proceeding before this Court

On 7 March 2007, the Applicant filed an application in this Court for judicial review of the Tribunal’s decision.
The Applicant was unrepresented before this Court although had the assistance of an interpreter.
The Applicant confirmed that he relied on the grounds identified in an amended application filed on 17 May 2007. Those grounds were identified as follows:
“1.There was an error of law in the Tribunal’s decision constituting a jurisdictional error;
2.There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
Particulars:
a. The Tribunal has considered following pieces of information as the reason or part of reason for affirming the decision that is under the review:
- I claimed that the Fuqing No.2 Construction Company (F2CC) “was responsible for the insurance, but then said that Mr.Lin was responsible for insurance”;
- I claimed that I and Mr.Lin felt some responsibility for providing insurance but that my boss Mr. Lin had told me to stop asking for insurance otherwise he would be sacked;
- On a number of occasions I had asked both the F2CC and Mr Lin. To buy insurance.
- F2CC had told Mr Lin. That if they did not stop asking about insurance the builder would give the contract to someone else.
b. The Tribunal has considered above-mentioned pieces of information as the reason or part of reason for making a finding in relation to my credibility.
c. However, the information mentioned in above is not the information which I have given to the Tribunal (s.424A(3)(b)); instead, it is the information misstated or misunderstood by the Tribunal. As a matter of fact, I have claimed in writing in my primary application that:
According to the agreement of the contract, Fuqing No.2 Construction Corporation would take responsible for providing necessary work safety facilities and arranging worker’s compensation for our painters with an insurance company.
d. At the Tribunal’s hearing, I have claimed orally that:
- I told Mr. Lin to buy insurance because I thought it was dangerous and he didn’t. As a matter of fact, it was happened before the agreement of contract had been signed. After the contract was signed, I knew relevant insurance clause included in the contract and therefore, while the accident was happened, I believe the company should be responsible for the accident and insurance…”; and
- Insurance was not our responsibility. I asked the F2CC for money to cover the cost of treatment but they refused…
e. Under the s.424A(1) of the Act, the Tribunal is obliged to for affirming the decision that is under the review:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
f. However, the Tribunal failed to give to me, in the way that the Tribunal considers appropriate in the circumstances, particulars of the pieces of information that the Tribunal has considered as the reason or part of the reason for affirming the decision that is under the review; failed to ensure, as far as is reasonably practicable, that I understand why they are relevant to the review; and failed to invite me to comment on tem (sic).
2. [3] The Tribunal made a decision with bias.
a. The Tribunal has stated in its decision:
In view of is limited education and functional illiteracy the Tribunal does not believe that the applicant has sufficient leadership skills to allow him to emerge as a person of concern to the authorities now or in the foreseeable future.
b. In other words, the Tribunal is of the view that only those people, who have been well-educated, could organize political activities against the Communist dictatorship; or the PRC authorities are only interested in those well educated people.
In summary, I have never ever agreed that my application has been assessed by the Tribunal fairly and carefully.”
At the outset of the hearing the Applicant said that he was dizzy. I asked the Applicant why he was dizzy and he said that something happened at home. When I asked what had happened at home, the Applicant stated that his wife had gone crazy because she was missing him too much and the police were looking for her. I asked the Applicant where his wife was and he responded that she was in the PRC. I then asked the Applicant if he had seen a doctor today to which he answered, yes. When I asked the Applicant when, today, he had seen a doctor, he replied that it was actually about ten days ago. I asked the Applicant if he had a medical certificate. The Applicant said, no he was told to rest at home and it would be better not to do anything too much and to take some sleeping pills. I said to the Applicant, are you unable to represent yourself today, to which the Applicant responded “I can”.
Having regard to the fact that there was no corroborative evidence before this Court of any incapacity of the Applicant to proceed with his hearing and having regard to the Applicant’s indication to the Court that he was able to continue, this Court decided to proceed with the hearing.
The grounds of the Applicant’s amended application were interpreted for the Applicant and he was invited to make submissions in support of those grounds or in support of his application generally. The Applicant had no meaningful submission to make in support of any of the grounds in his amended application generally, other than to say that the Tribunal had not believed him and he is not a criminal.

Ground 1 – “There was an error of law in the Tribunal’s decision constituting a jurisdictional error”

Ground 1 simply asserts that there was an error of law in the Tribunal’s decision constituting a jurisdictional error. There are no particulars in support of the bare assertion. In its terms, no reviewable error is disclosed. Accordingly, ground 1 is rejected.

Ground 2 – “There was procedural error in the Tribunal’s decision constituting an absence of natural justice”

Ground 2 is supported by particulars. At the heart of the particulars is an allegation that the Tribunal failed to comply with its obligations under s.424A(1) of the Act. Essentially, the Applicant alleges that the Tribunal misconstrued his evidence.
The context of this allegation, as referred to by the particulars in support of this ground, appears to be grounded in the Tribunal’s finding that certain claims made by the Applicant were contradictory leading the Tribunal to conclude that the Applicant was not a credible witness.
The Tribunal identified as disclosing these contradictions by four dot points in its decision. However, it was only the first dot point which the Applicant complains to this Court was incorrect. In that dot point, the Tribunal stated “[the Applicant] claimed that the F2CC was responsible for the insurance, but then said Mr Lin was responsible for insurance.”
This statement by the Tribunal appears to be the Tribunal’s summary of an exchange between the Tribunal member and the Applicant at the hearing which the Tribunal recited in its decision as follows:
“Q. Why were you afraid of arrest when you had just arrived at the hospital following the accident?
A. I was not afraid of arrest in the beginning, but after 3 months when the government refused to pay compensation. Their excuse was that we didn’t buy the insurance. When I wanted to buy the insurance F2CC said don’t, but if you insist, we will find someone else to do the job.
Q. The contract states that it was the responsibility of the F2CC to provide insurance to Mr Lin and yourself for the painters. Why did you say that you wanted to buy insurance when it was the responsibility of the F2CC?
A. In the beginning I told the F2CC to buy the insurance but they refused. I was told that if I insisted we would not get the contract.
Q. Who was responsible for buying the insurance?
A. Mr Lin and I asked the F2CC to buy the insurance. They said some contractors buy insurance others don’t. If you insist then we will give the contract to others.
Q. Although the contract states that the F2CC was responsible.
Q. In your previous evidence to the Tribunal you said that it was Mr Lin who was responsible for arranging insurance not F2CC.
A. I told Mr Lin to buy insurance because I thought it was dangerous and he didn’t.
Q. Is it possible that Mr Lin went to jail because he didn’t buy insurance?
A. I believe the company should be responsible for the accident and insurance, but they said it was our responsibility to buy insurance.
Q. Who was responsible for the scaffolding
A. The company.
Q. Did Mr Lin tell you that you would be sacked if you kept raising the insurance issue?
A. Yes
Q. According to your evidence the later investigation found that the accident was caused by the painters because they didn’t follow safety procedures. Consequently, the F2CC refused to accept responsibility for compensating the dead and injured.
Q. Do you claim that the investigating committee were bribed by the F2CC and what did you say to the enquiry?
A. I said that I was working on level 4 of the building when the broken scaffolding collapsed and 6 painters fell down. The police came and the injured were sent to the hospital immediately.
Q. How did you react to the decision of the enquiry?
A. Insurance was not our responsibility. I asked the F2CC for money to cover the cost of treatment but they refused.”

The Tribunal concluded that there were “evident contradictions” in the Applicant’s evidence before the Tribunal causing the Tribunal to find that the Applicant was not a credible witness.
The contradictions found by the Tribunal, referred to in paragraph 32 of these Reasons, arose in the context of the Tribunal’s consideration of the Applicant’s claim of a fear of persecution by reason of being Mr Lin’s assistant in circumstances where Mr Lin was arrested in April 2005 because he organised demonstrations for compensation, were he to return to the PRC. The Tribunal noted that it gave the Applicant the benefit of the doubt about Mr Lin’s arrest. However, the Tribunal noted that the Applicant’s evidence about Mr Lin’s role in providing insurance for the painters was “conflicted” and that Mr Lin may have been arrested because of the compensation issue.
The Tribunal then summarised the evidence of the Applicant that it found to be contradictory on this issue and which led it to note conflicting reasons as to why Mr Lin may have arrested. That summary is the fourth dot point referred to in paragraph 31 above in these Reasons.
However, those findings of fact made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons.
To the extent that the Applicant’s complaint is in the nature of a disagreement with the findings of fact, the Applicant is inviting the Court to review the merits of his case. This is a course that is not open to the Tribunal as seen in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 272:
“These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (38). In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quinn (39):
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.””
The Applicant also complains in the particulars to ground 2 that his evidence was misunderstood by the Tribunal. The Applicant alleged that the information relied upon by the Tribunal in making its adverse credibility finding is information that should have been given to the Applicant for comment pursuant to s.424A(1) of the Act. The Applicant appears to assert that the contradictory matters referred to by the Tribunal constituted information that should have been given to the Applicant by the Tribunal.
To the extent that the Applicant contends that the contradictions or the Tribunal’s findings of contradictions should have been put to the Applicant for comment, such a contention is misconceived. The Tribunal was doing no more than evaluating evidence before it, summarising the Applicant’s evidence and identifying those aspects of the Applicant’s evidence that it found to be contradictory. As stated above, the Tribunal’s findings of contradiction in the evidence are findings of fact. Those findings of fact were open to the Tribunal on the material and evidence before it and for which it gave reasons.
Otherwise, the evidence or the information to which the Tribunal had regard was evidence given by the Applicant to the Tribunal for the purposes of his review.
In the circumstances, there was no enlivenment of the obligations of s.424A arising out of the Tribunal’s assessment of the Applicant’s evidence and its findings arising of its consideration of that evidence.
Accordingly ground 2 is not made out.

Ground 3 – “The Tribunal made a decision with bias”

At the heart of the Applicant’s complaint in ground 3 is his disagreement with a finding of the Tribunal that, because of his limited education and functional illiteracy, the Tribunal did not believe that the Applicant had sufficient leadership skills to allow him to emerge as a person of concern to authorities now or in the foreseeable future.
Again, that is a finding of fact that was open to the Tribunal on the evidence and material before it. The Applicant’s complaint is essentially a disagreement with that finding. As stated above in these Reasons, this Court cannot conduct a merits review.
To the extent that the Applicant is alleging bias or apprehended bias on the part of the Tribunal, such a serious allegation requires evidence (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668).
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71]-[72], [127]).
Further, a fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than open with a mind open to persuasion. (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 & Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
Accordingly ground 3 is not made out.
Otherwise, the Tribunal complied with the statutory obligations in the making of its decision, including the conduct of its review. The Tribunal identified the Applicant’s evidence with particularity, considered that evidence, made findings based on the evidence and, applied the appropriate legal tests and reached conclusions that were open to it on the evidence and material before it and for which it gave reasons.

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 7 March 2007, is dismissed with costs.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 28 June 2007