SZJKB v Minister for Immigration
[2007] FMCA 1989
•29 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJKB v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1989 |
| MIGRATION – Review of 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, 424A, 476 FederalMagistrates Court Rules 2001 (Cth), rr.44.11(c), 44.12 |
| Kopalapillai v Minster for Immigration and Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 NBKM & Ors v Minister for Immigration & Anor [2007] FMCA 179 Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 SZILQ v Minister for Immigration & Anor [2007] FMCA 483 Tin Shwe v Minister for Immigration and Multicultural Affairs [2000] FCA 988 VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 131 FCR 182 WABC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 286 WAJW v Minister for Immigration and Multicultural Affairs [2004] FCAFC 330 |
| Applicant: | SZJKB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2683 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 24 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 29 November 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitors for the Respondents: | Ms N Johnson of Sparke Helmore |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application filed on 21 September 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 |
SYG 2683 of 2006
| SZJKB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| 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) and has been given the pseudonym “SZJKB”.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act filed in the Sydney Registry of the Federal Magistrates Court of Australia on 21 September 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 31 July 2006 and the applicant was notified of that decision by letter dated 17 August 2006. The Tribunal decision affirmed a decision of a delegate of the first respondent made on 4 April 2006, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs 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 FederalMagistrates Court Rules 2001 (Cth), 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 17 October 2006. I have marked it Exhibit “A” and it was read into evidence.
Background
The Tribunal decision of S Roushan, reference 060406886, provides the following background information:
The applicant, who claims to be a citizen of China, arrived in Australia on 11 March 2006 and applied to the Department of Immigration and Multicultural Affairs for a Protection (Class XA) visa on 23 March 2006. The delegate decided to refuse to grant the visa on 4 April 2006 and notified the applicant of the decision and her review rights by a letter posted on the same day. The applicant applied to the Tribunal on 5 May 2006 for review of the delegate’s decision.
(CB 65)
The applicant’s claims are set out in the Tribunal decision under the heading “Claims and Evidence” and I rely on the following paragraphs of the decision:
She was employed as an accountant for Senfeng for 18 years. The company was closed down in September 2000 and many employees, including the applicant, lost their jobs. While the compensation to former employees was small, Senfeng promised that it would provide regular living allowances to former staff members upon turning 50 years old. The applicant moved on to work with the Tianjin branch of Jiangsu in October 2000.
In August 2005 two of the applicant’s former colleagues at Senfeng, Ms Yang and Ms Gao, informed the applicant that they had been denied the living allowances promised by Senfeng despite having turned 50 years old. As a Deputy Director of accounting at Senfeng, the applicant had knowledge of the promise made by the company and therefore agreed to accompany Ms Yang and Ms Gao to Senfeng to press their case.
From August to September 2005, the applicant together with a number of former colleagues visited the offices of Sanfeng on “many occasions” in order to persuade the company to keep its promise. They did not make any “trouble”, but “peacefully” insisted on their demands.
On 30 September 2006 the applicant was visited by three policemen who showed her a summons, searched her house, took some personal documents and took her to Hebei branch of PSB. She was detained, together with Ms Yang and Ms Gao, for some 10 days and was accused of participating in anti-government protests and spreading anti-government political ideologies. During the course of her detention she was subjected to torture by electric baton, was denied proper food and drink and was kept in a dark room. She was released after signing a confession and paying a monetary penalty. She lost her job after the police “discussed” the matter with her boss.
After her release she contacted Yang and Gao and a number of other Sanfeng former employees and organised “many petitions” to the government of Tianjin City. They did not put their names to these petitions which were signed as “the victim’s of Sanfeng Company”.
However, the petitions came to the attention of PSB. The applicant, Ms Yang and Ms Gao were regarding as the main suspects and were questioned many times, but they refused to admit their actions and PSB did not find any evidence against them.
(CB 67-68)
The Tribunal’s findings are summarised in the first respondent’s written submissions and I adopt paragraphs 7 to 10 of those submissions:
7. On 18 May 2006 the Tribunal invited the applicant to a hearing on 11 July 2006. The letter was sent to the applicant’s authorised recipient (CB 48) and provided more than the prescribed period of notice.
8. On 12 July 2006 the Tribunal sent a letter to the applicant pursuant to s.424A of the Act, outlining the particulars of information which would be part of the reason for affirming the delegate’s decision and why it was relevant to the review. In particular, the Tribunal referred to:
a. The inconsistency between the protection visa application and the claim, raised at the hearing, of detention on 1 December 2005;
b. An inconsistency in respect of information in the applicant’s first visa application which showed that the applicant was the CFO of Dongchuang Science and Technology Co at the time the visa was granted;
c. The delay between the date the applicant’s visa was granted (16 February 2006) and the date the applicant departed China (10 March 2006); and
d. The ease with which the applicant departed China.
9. The applicant responded to this letter on 26 July 2007 (CB 59-60). In her response, the applicant claimed that her claim of detention on 1 December 2005 was an example of the PSB giving her “troubles more and more frequently” (CB 59.6). The applicant also provided further details about her departure from China (CB 59.8-60.3).
10. The Tribunal accepted that the applicant was employed by Sanfeng at some point, but rejected the applicant’s other claims for the following reasons:
a. The applicant’s account of her protest activity and the authorities’ reaction to it was not consistent with the independent evidence. In particular, the Tribunal found that protests of the size described by the applicant would have been broken up by the authorities (CB 77.7-77.9);
b. The applicant’s claim to have written petitions but not be arrested due to a lack of evidence was not credible, because a lack of “legal evidence” of her involvement would not have deterred the PSB from taking action against her (CB 78.2-78.5);
c. The applicant’s claim to have been detained on 1 December 2005 for 10 hours was not credible because, if true, it would have been mentioned by the applicant to her representative and included in the protection visa application (CB 78.8-78.9). Further, the Tribunal did not accept the applicant’s explanation in the response to the s.424A letter, that the detention could be equated to a “talk” (CB 78.9-79.1); and
d. The applicant was not a credible witness. The applicant showed a propensity to tailor her evidence, her evidence was inconsistent and the claim of detention on 1 December 2005 was “belated” (CB 79.2).
Application for review of the Tribunal decision
On 21 September 2006, the applicant filed an application for review in this Court under s.39B of the Judiciary Act. In accordance with orders made at the first Court date, the applicant filed an amended application on 13 December 2006 setting out the following grounds:
1. The Tribunal failed to consider my review application, properly and fairly.
1.1 On 12 July 2006, after I had attended the Tribunal’s hearing, the Tribunal, pursuant to s.424A (said by the Tribunal), wrote to me advising the Tribunal has information that would, subject to any comments I made, be the reason, or part of the reason, for its decision (“the s.424A letter”).
1.2 On 27 July 2006, I provided my comment in form of Statutory Declaration.
1.3 Shortly after that, the Presiding Member made the decision to affirm the decision not to grant me a Protection (Class XA) visa. But, to my surprise, most of information that the Tribunal had considered as the reason, or part of the reason, in its decision has NOT been included in the s.424A letter sent to me after the Tribunal’s hearing.
1.4 In particular, the Tribunal’s decision has relied on the pieces of information as follows:-
i. Independent information, such as Pan, P, ‘Getting Paid in China: Matter of Life and Death’, Washington Post, 13 February 2003; Wasserstrom, Jeffry N, ‘Waiting for China’s Lech Walesa’, Current History, September 2002; US Department of State Country Reports on Human Rights Practices 2005 China;
ii. The information regarding to my claim that after my release I wrote petitions to the local government; and that I was not arrested by the authorities as a consequence.
1.5 It is, apparently, that the above-mentioned information, used by the Tribunal in my case, is not the one that is not specifically about the applicant or another person and that is just about a class of persons of which the applicant or another person is a member (s.424A(3) of the Act).
1.6 Therefore, the Tribunal should, at least, provide me the particulars of the information; to ensure, as far as is reasonably practicable, that I understand why it is relevant to the review; and to invite me to comment on it. Unfortunately, the Tribunal failed to do so.
1.7 I, then have to doubt the genuine purpose for the Tribunal to send me the s.424 letter; and I could only get two answers: either the Tribunal tried to DENY my right entitled under s.424A(1) of the Act; or, the Tribunal tried to DENY my right to seek a juridical review with the Federal Court.
1.8 Furthermore, my response to the s.424A letter has included part of important new claims or new information. If the Tribunal really intended to consider my claims, properly and fairly, the Tribunal should, at least, arrange another hearing for me (s.425 of the Act).
2. The Tribunal failed to comply with s.424A(1) of the Act.
2.1 It is based on my claims mentioned above that I do not think that the Tribunal has, HONESTLY and FAIRLY, complied with s.424A(1) of the Act.
2.2 As a matter of fact, the Tribunal should, at least, give me a chance to comment on the information mentioned in above paragraph 1.4.
3. The Tribunal failed to comply with s.425 of the Act.
3.1 As I have mentioned above, my response to the s.424A letter has included part of important new claims or new information. If the Tribunal considers that it should NOT decide the review in my favour on the basis of the material BEFORE it, which, definitely, included my claims and information in the s.424A letter submitted to the Tribunal on 27 July 2006; and certainly, I have never consent to the Tribunal deciding the review without my appearing before it, the Tribunal MUST invite me to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under view.
3.2 Unfortunately, the Tribunal failed to do so.
4. The Tribunal made a decision with bias that “…many applicants for refugee status are selective in their evidence and present their case in the most favourable light…”, and with such bias, the Tribunal was unable to make a fair decision; and it even was unable to look at independent country information, fairly and properly; such as the one “Radio Free Asia’s Mandarin service reports more than 10 millions people took to China’s street during the course of 2003 as part of a mounting wave of popular protests which is sweeping the country…” which has clearly demonstrated that my claims are consistent with the independent country information.
5. Furthermore, fairly looking at the other pieces of independent country information such as Human Rights Watch report as well as US Department of State Country Reports on Human Rights Practices 2005, my claims are definitely consistence with them.
6. As a matter of fact, what the Tribunal did was carefully selecting part of so-called independent country information based on its bias; and then picking up a reason to deny my rights of being protected by the Australian government
In summary, I have never believed that my review application has been fairly and carefully assessed by the Tribunal.
Submissions and reasons
The applicant is a self-represented litigant who appeared with the assistance of a Mandarin interpreter. The applicant confirmed that she had not filed any written submissions in accordance with the orders made on 15 February 2007. When invited to make oral submissions, the applicant effectively repeated the contents of the amended application. She did not, however, elaborate on some on the issues and grounds and I will address those below when I refer to each in turn.
Ms Johnson, appearing for the respondents, indicated that she would rely upon written submissions which had been prepared in response to the amended application. Ground one asserts that the Tribunal erred because it failed to provide particulars of independent country information on which it relied to the applicant. Ms Johnson submits that the Tribunal’s use of independent country information does not give rise to any obligation under s.424A(1) of the Migration Act because such information falls within the ambit of s.424A(3)(a): Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 at [66]-[71] per Beaumont J and at [138] per Merkel and Hely JJ; WAJW v Minister for Immigration and Multicultural Affairs [2004] FCAFC 330 at [44]-[46]; VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [11]-[16].
Ms Johnson submits that ground one also asserts that because the applicant’s response to the s.424A letter referred to new claims, the Tribunal should have held a second hearing. It is submitted that this is misconceived because there were no new claims raised in the response to the s.424A letter (CB 59-60). The only aspects of the claims in the response to the s.424A letter relates to the applicant’s detention on 1 December 2005, which were already raised at the Tribunal hearing (CB 69.6), and the applicant’s departure from China, which was raised in her protection visa application (CB 27.2-27.4).
Ms Johnson submits that it is clear that the Tribunal rejected the applicant’s claims because it did not believe her. The applicant was aware that her credibility was in issue because it was the reason why the Minister’s delegate refused to grant her a protection visa (CB 43.4-43.5). At the hearing, the Tribunal also raised with the applicant the doubts it had about the veracity of her claims. For example, the Tribunal stated:
She was asked what had motivated her to press the issue of the promise with the company so vigorously. She said this is her personality and that she likes upholding justice. The Tribunal put to her that it sounds odd that she had pursued this matter which she was only tenuously connected to because she like upholding justice. She said she was not pursuing an ordinary issue and that she was trying to uphold justice. She was asked why she did not simply write a corroborating letter of support to the former Sangfeng employees. She said she was upholding justice and that there was no other course of action because there is no freedom of speech or human rights in China…
She was asked if she had engaged in any other activities after her release she said that she submitted written petitions to local government. The petitions were just statements of fact and PSB took them to an “activity”. She was asked why she was not arrested by the PSB as a result of submitting these petitions. She said PSB intimidated her from time to time but had no evidence against her. She was asked, if PSB knew that she was writing the petition why she wasn’t arrested. She said because she did not sign the petitions. The signature on the petitions was “Victims of Sanfeng Company”. The Tribunal noted that she had been closely associated with the issue, she had visited the company on a number of occasions and had been arrested and detained because of it. She was asked by the PSB would not know who the signatories were. She said PSB knew that she was involved, but they needed legal evidence and that is why she was not harassed from time to time.
The Tribunal noted that the last time she visited the company was on 20 September 2005. She was asked why she had been arrested some 10 days later and not sooner. She said PSB had intimated her at the beginning by telling her that if she persisted she would be implicated and that she would have to take responsibility…
The Tribunal put to her that if she was not involved in public criticism of the government why was she arrested and detained. She said she did not know, but it was true.
(CB 69.8-70.9)
Accordingly, the applicant was aware of the issues arising under review and had been validly notified of the Tribunal hearing held on 11 July 2006 and its purpose. The hearing invitation letter dated 18 May 2006 had been validly sent to the applicant’s nominated agent as requested in the Tribunal application form (CB 48, 51-52). No obligation to invite the applicant to a second hearing arose.
I agree with the first respondent’s written submissions in respect of the three issues raised in ground one. The Tribunal’s adverse credibility finding and its consequent rejection of the applicant’s claims is a matter for the Tribunal, see Minister for Immigration & Multicultural Affairs; Ex parteDurairajasingham (2000) 168 ALR 407 at [67] per McHugh J:
67. …a finding on credibility which is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence…
The Tribunal’s finding in this respect was open to it on rational grounds on the material before it, and discloses no error in its treatment of the applicant’s credibility: Kopalapillai v Minster for Immigration and Multicultural Affairs (1998) 86 FCR 547. I am satisfied that the passages from the Tribunal decision identified by Ms Johnson and reproduced at [12] above indicate the concerns that the Tribunal had about aspects of the applicant’s evidence which were raised with her at the hearing. The applicant was unsuccessful because of the view the Tribunal took of the facts and, in particular, its finding that she was not credible. Similarly, I am satisfied that the applicant was validly notified of the hearing, and given an opportunity to respond to the “Invitation to Comment on Information” letter, in accordance with the Migration Act. I am satisfied that no jurisdictional error arises with respect to these issues.
The applicant’s claim in particular 1.8 of ground one is that she should have been granted a further Tribunal hearing because she raised a new claim in her response to the invitation to comment. The requirement to provide an applicant with a second hearing was considered in NBKM & Ors v Minister for Immigration & Anor [2007] FMCA 179 at [43]-[46] and SZILQ v Minister for Immigration & Anor [2007] FMCA 483 at [24]-[37]. Both those cases concerned applications which were remitted to the Tribunal and hearings were held when the matters were previously before the Tribunal. The Tribunal in each case had access to a transcript of the first hearing and decided that no further hearing was required. In the matter before this Court, the applicant has been invited to comment on particular aspects of the evidence before the Tribunal and, if a new claim were to arise, she was given sufficient opportunity to fully articulate that claim and submit supporting evidence and arguments. As the applicant was assisted by a registered migration agent in the preparation of her response, these aspects should have been raised then. The migration agent did not request a further opportunity to put this material to the Tribunal. In the circumstances, I am satisfied that there is no requirement for the Tribunal to provide the applicant with a further hearing. I am satisfied that ground one cannot be sustained.
Ground two of the amended application raises the same issues as ground one in respect of independent country information.
Ground three also contends that the applicant should have been invited to a second hearing.
I am satisfied that the issues raised in both ground two and three have been correctly addressed in my consideration of ground one. The pleadings in these two grounds do not raise any new issue not already addressed in relation to ground one.
Grounds four and six claim that the Tribunal was biased. There is no evidence before the Court supporting the allegation of bias. For a claim of actual bias to succeed, it must be proved that the Tribunal member had a pre-existing state of mind which disabled him from undertaking, or rendered him unwilling to undertake, a proper evaluation of the material before him relevant to the decision to be made: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [35] and [72]. Actual bias can only be said to exist where the Tribunal member is so committed to a conclusion already formed as to be incapable of alteration whatever evidence or argument may be presented: Jia at [71]-[72]. A party alleging actual bias on a decision-maker’s part carries a heavy onus and it must be clearly proved. Existence of actual bias may be inferred from the facts and circumstances. However, caution should be exercised in the absence of evidence of partisanship or hostility, before inferring actual bias from factual errors or faulty reasoning on the part of the Tribunal member: Tin Shwe v Minister for Immigration and Multicultural Affairs [2000] FCA 988 at [27]. A case of actual bias is seldom made out by reference solely to the reasons for decision and no inference of bias or pre-judgment can be drawn merely from adverse findings in the Tribunal’s reasons: VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 131 FCR 182 at [21]; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 286 at [3].
Alternatively, apprehended bias will exist where a fair-minded lay observer, who is properly informed as to the nature of proceedings, the matters in issue and the conduct of the Tribunal, would not apprehend that the Tribunal member may not bring an impartial mind to the resolution of the question to be decided: Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982 at [27]. Where credibility is in issue, as it is in this matter, the Tribunal member will necessarily have to test the evidence presented, often vigorously: Ex parte H at [30]. Procedural fairness will often require the applicant to be plainly confronted with matters which bear adversely on his or her credit or which brings his or her account of events into question. Further, the decision maker’s assessment of the applicant’s credit will often depend on their demeanour and the manner in which they give evidence: Ex parte H at [34].
In the absence of particulars or submissions clearly identifying the necessary elements of actual or apprehended bias, this ground cannot be sustained. A disagreement by the applicant with the Tribunal’s decision does not infer or establish any claim of bias. Grounds four and six must be dismissed.
Ground five contends that the applicant’s case is consistent with independent country information contained in the Human Rights Watch Report and the US Department of State Country Reports on Human Rights Practice 2005. The applicant claims that the circumstances of her claims are consistent or very similar to the situation referred to in those reports. Ms Johnson submits that this ground seeks merits review of the Tribunal decision and is not a proper ground of judicial review: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13] per Gray, Tamberlin and Lander JJ. I agree with the submission that ground five cannot be sustained.
Ms Johnson submits that the Tribunal’s findings about the applicant’s credibility were open to it on the material, and within its jurisdiction. Findings on credibility are matters of fact for the Tribunal alone and should not be disturbed by this Court: Durairajasingham at [67]; NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9].
Conclusion
That the applicant is displeased with the conclusion to which the Tribunal came is not indicative of jurisdictional error. I am satisfied that none of the grounds contained in the amended application can be sustained and that the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 29 November 2007
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