SZJAY v Minister for Immigration - [2007] FMCA 1115

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJAY v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1115

MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 476
Federal Magistrates Court Rules 2001(Cth), rr.44.11(c), 44.12

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Refugee Review Tribunal, Re; Ex parte H (2001) 179 ALR 425
VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459
Webb v R (1994) 181 CLR 41

Applicant:

SZJAY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1920 of 2006

Judgment of:

Lloyd-Jones FM

Hearing date:

11 May 2007

Delivered at:

Sydney

Delivered on:

13 July 2007

REPRESENTATION

Advocate for Applicant:

The Applicant appeared in person with the assistance of a Mandarin interpreter

Counsel for the First Respondent:

Mr M P Cleary

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The name of the first respondent be amended to read ‘Minister for Immigration & Citizenship’.
The application filed on 11 June 2006 is dismissed.
The applicant is to pay the first respondent's costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1920 of 2006

SZJAY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZJAY”.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Act filed in the Sydney Registry of the Federal Magistrates Court of Australia on 11 June 2006 for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal").
The Tribunal decision was made on 25 May 2006 and mailed to the applicant on 15 June 2006, affirming a decision of the delegate of the first respondent made on 28 February 2006, refusing to grant the applicant a Protection (class XA) visa.(CB 57) The applicant seeks relief against the decision of the Tribunal.
The applicant seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Act. Pursuant to r.44.11(c) of the Federal Magistrate Court Rules 2001 (Cth) ("the Rules"), I dispensed with a hearing under r.44.12 and set the matter down for final hearing.
A Court Book ("CB") prepared by the first respondent's solicitors was filed and served on 20 September 2006. I have marked it Exhibit "A" and it was read into evidence.
The applicant in these proceedings filed the following affidavits:
a)An affidavit of [SZJAY] affirmed on 7 July 2006 (“first affidavit of the applicant”). Attached to this affidavit is a copy of the Tribunal decision.
b)An affidavit of [SZJAY] affirmed on 2 November 2006 (“second affidavit of the applicant”). This affidavit contains the grounds of review also in the amended application.

Background

The Tribunal decision of C Long, reference N0653381, provides the following background information:
The applicant, who is a citizen of the People's Republic of China, arrived in Australia on 25 January 2006 and applied to the Department of Immigration & Multicultural Affairs for a protection (Class XA) visa on 2 February 2006. A delegate decided to refuse to grant the visa on 28 February 2006 and notified the applicant of the decision and his review rights by letter of the same date. The applicant applied to the Tribunal on 24 March 2006 for review of the delegate's decision.(CB 62)
The Tribunal decision summarises the applicant's claims under the subheading "Claims and Evidence":
In the statement accompanying his application for protection visa, the applicant states that because there was embezzlement by officials/directors at the factory where he worked for many years in China, he and many workers became unemployed and were dismissed with no compensation. He rallied a group of workers to appeal for justice and they carried out a silent protest; he names workers who were involved in the protest. The protestors sat outside the government offices around the clock. As days went by, however, more and more people became involved and the number of protestors rose to 800 at one stage. The protest then became unruly and the organisers lost control of the crowd. The factory directors approached him and told him to disperse the crowd. The corrupt officials and directors of the factory then called police to disperse the crowd, but the organisers remained. The workers reported the embezzlement at the factory to the mayor of Tianjin, but they were threatened and told that they would be arrested and charged as an anti-government organisation. The applicant realised the corruption of the government. The directors called the police when the protestors did not leave and the police started arresting people. The applicant led a group of protestors onto the roof of the factory and the police continued to arrest people. In a scuffle, a person who the applicant named, fell to his death from the roof. The blame for the death was shifted onto the protestors and members of the group, two of whom the applicant names, were arrested and interrogated about who were the leaders of the protest. The applicant was afraid that the captured members of the group would reveal his involvement to the police when they were interrogated. He states, "Under such fear and with the help of friends, I came to Australia."(CB 64)

Tribunal's findings and reasons

A summary of the Tribunal's findings is contained in the first respondent's written submissions prepared by Mr Cleary and I adopt paragraphs 12 and 13 of those submissions:
12. The Tribunal found that the applicant did not have a well‑founded fear of persecution for a Convention reason and was not someone to whom Australia had protection obligations under the Convention.(CB 69) The Tribunal rejected the application for asylum for the following grounds:
·    The Tribunal did not accept the applicant was wanted by the Chinese authorities due to his involvement in the anti-government protests. The Tribunal did not accept the applicant was questioned by police, and did not accept he left China for the reasons he gave;
·    The Tribunal did not accept the applicant was a witness of truth and accordingly rejected the applicant's claims that he could not return to China because he feared persecution because of his anti-government activities;
·    The Tribunal considered the Independent Country Information and discussed this with the applicant at the hearing on 23 May 2006. It was not consistent with the claims being made by the applicant as the applicant was able to leave China in January 2006 without difficulty and used a passport and visa in his own name;
·    The Tribunal also found the applicant's claims that he would be persecuted if he returned to China inconsistent with the fact that he was living with his family at his usual address in China up until the time he left.
13.    For these reasons, the Tribunal found that the applicant was not a refugee and affirmed the delegate's decision.

Application for review of the Tribunal's decision

On 11 June 2006, the applicant filed an application for review in this Court under s.39B of the Judiciary Act. In accordance with an order made at first directions, the applicant filed an amended application on 3 November 2006 setting out the following grounds:
1. There is jurisdictional error for the purposes of s.75(v) of the Constitution when RRT reviewed my case. They refused to acknowledge the oral evidence I gave, and failed to consider the difficulties in obtaining the written evidence.
2. I have found that the RRT decision does contain some bias as alleged by the facts. Further, there are obligations on the RRT, in these particular matters, to refer to resources about China and its democratic system. The fairness can rarely be reached when the government corruption exists.
3. The legal advice that had been given under the Legal Advice Scheme focused on the "skilled migration" rather than guidance to my case.
Conclusion:
I submit that there is jurisdictional error for denial of pursuit of fairness and natural justice regarding the RRT decision, both respondents should review the cases and adjust the decision accordingly.

Submissions and reasons

The applicant is a self-represented litigant and appeared with the assistance of a Mandarin interpreter. He confirmed that he had not prepared and filed written submissions, however he did make oral submissions in support of his application. The applicant indicated to the Court that regardless of whether one was a normal citizen of China or not, customs officials did not pay a great deal of attention to its citizens with normal travel documents and departing the country through the usual exit points. The applicant indicated that his greatest risk was returning to China as customs officials strictly monitor each person entering the country. By this time, the officials would be aware that the applicant was a person of interest to the Public Security Bureau (PSB).
He also indicated that his return could result in harm to his wife and daughter who had left the family home and now lived with the applicant's parents. The family of the person who was killed during the demonstration (see [8] above) had asked the PSB to pursue the villains responsible. The applicant claimed that the suspicion had been shifted to him and this would result in his immediate arrest should he return to China.
Mr Cleary referred to the Tribunal decision, with particular emphasis on its comments in respect of the applicant's evidence at the hearing on 23 May 2006. This was contrary to the arguments raised in his grounds of review.
In the first ground of the amended application, the applicant asserts that the Tribunal committed jurisdictional error by failing to consider his oral evidence given at the hearing. Mr Cleary, in his written submissions, contended that the Tribunal carefully considered the evidence of the applicant, both written and oral.(CB 64-67) The Tribunal found that the applicant was not a witness of truth and rejected his claims, including the claim that he was wanted by Chinese authorities in China.(CB 68) I agree with these submissions after considering the contents of the decision under the sub-heading "Claims and Evidence". This ground cannot succeed.
The applicant's second ground raises two issues, the first of which is an assertion that the Tribunal decision contained bias. Mr Cleary submits that the obligation to accord procedural fairness involves the notion that administrative decisions will be made without reasonable apprehension of bias of the decision-maker: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [4]; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 89. The general test for apprehended bias is whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not have brought an impartial mind to bear on the decision: Webb v R (1994) 181 CLR 41 at 70-71; Laws at 90-92; Ebner at 343-45.
Mr Cleary relies on Refugee Review Tribunal, Re; Ex parte H (2001) 179 ALR 425 at [27]-[32] per Gleeson CJ, Gaudron and Gummow JJ in relation to apprehended bias in an administrative decision when the hearing is held in camera:
[27] The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that a Judge might not bring an impartial mind to the resolution of the question to be decided. That foundation owes much to the fact that Court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private.
[28] Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matter in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be an appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
[29] Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of the objective possibilities, the non-curial nature of the body or Tribunal in question and the different character of proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the Tribunal is that the former are adversarial and the parties are usually legally represented, where the latter are inquiries in nature and the parties are not represented.
[30] Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, that needs to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into action. Similar questions by a Judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias that indicates of inquisitorial proceedings.
[31] Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of evidence and frank exposure of its weaknesses do not result in a person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly-informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view.
[32] In the present case, a fair-minded lay observer or a properly-informed lay person, in our view, might well infer, from the constant interruptions of the male prosecutor's evidence and the constant challenges to his truthfulness and to the plausibility of the counter-defence, that there was nothing he could say or do to change the Tribunal's preconceived view that he had fabricated his account of the events upon which he based his application for a protection visa. In other words, a fair-minded lay observer or a properly-informed lay person might well apprehend bias by a Tribunal against a male prosecutor. And because the female prosecutor's application stood and fell with his, a fair-minded lay observer or a properly-informed lay person may, in our view, form the same view in her case.
The authorities make it clear that an allegation of apprehended bias is a serious one and should not to be made lightly. The applicant has not elaborated on how the Tribunal was biased in making its decision. Mr Cleary submits that the hearing was conducted in an unobjectionable way and that an objective review of the decision leads the observer to conclude that it was carried out in accordance with the Act. I agree with those submissions and the first issue raised in the second ground cannot be sustained.
The second issue raised in the second ground is that the Tribunal failed to refer to "resources" about China. Mr Cleary submits that the Tribunal referred to independent country information on China in its analysis of the applicant's claims and in its discussion with the applicant at the hearing.(CB 66) It also referred to such information in its reasons for rejecting the applicant's claims. Mr Cleary submits that there was nothing unusual or improper in the way this was done and the hearing was conducted in accordance with the requirements prescribed by the Act.
I note that the Tribunal did in fact identify and refer to independent country information, however it is under no general duty to inquire, by undertaking a general review of the information, as suggested by the applicant. I refer to VCAK of 2002 v MIMIA [2004] FCA 459 at [27] per Crennan J:
[27] Following established authority, her Honour found that s.424 and s.427(1)(d) empowering the Tribunal to obtain the information and requiring investigation are permissive not mandatory. The principles have been clearly explained. See: Dissanayake v The Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 976 esp at [18]. The fact that a Tribunal did not use enabling provisions like s 424 (to seek additional information) and s 427(1)(d) (to take further inquiries) does not indicate any error of law on its part. See also: CSAS v The Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 598 esp at [40]. No issue concerning sub-s.424 and 427 arose in the subsequent appeal to the Full Court: SCAS v The Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397. This is especially so when the Tribunal reached its conclusions on the basis that even if the documents in question were genuine, there was other evidence which contradicted the documents and it was open to it to rely on such other evidence. As well, as the High Court has held, the procedures under s 420 are evacuative not restrictive: Minister for Immigration & Multicultural & Indigenous Affairs v Eshetu (1999) 197 CLR 611 at [49].
I accept the submissions made by Mr Cleary in respect of the second issue in the second ground and agree that this ground cannot be sustained.
In the third ground of review, the applicant claims that the Court’s free Legal Advice Scheme focused on "skilled migration" rather than providing guidance to him in preparing his case. No particulars were provided in respect of this claim. The Court file indicates that the panel adviser allocated to the applicant is an experienced practitioner in this jurisdiction and has advised many applicants to the Court. The panel advisor was provided with a copy of the Court Book together with a copy of the Order made at the first Court date. The nature of the applicant’s complaint is unclear as the adviser would have had the relevant material indicating that this was a judicial review of a Refugee Review Tribunal decision, not the Migration Review Tribunal.
When invited to reply to the submission made by Mr Cleary, the applicant indicated that his oral evidence to the Tribunal was given under oath and not fabricated, and that he should be believed.
As the source of the complaint in the third ground of review is unclear and the applicant did not wish to make any submissions in support of that ground, it is appropriate that this ground of review should be rejected.

Conclusion

The applicant appeared at the hearing as a self-represented litigant assisted by an interpreter. The oral submissions made by the applicant substantially repeated the claims made in respect of his protection visa application, along with the insistence that these claims were true.

A substantial part of the claims made against the Tribunal directly contradict the decision itself. In the circumstances, there is an obligation on the Court to independently consider whether any argument based on the material contained in the Court Book, and in particular the Tribunal decision, can be made out. I am satisfied that none of the grounds claimed by the applicant can be sustained.

Neither is it apparent that any other ground of review exists that suggests the Tribunal made a jurisdictional error in its decision‑making process. Consequently, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter.

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

Associate:

Date: 13 July 2007