SZJKV v Minister for Immigration

[2007] FMCA 1613

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJKV v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1613

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal obliged to invite comment on its reasoning or provisional views – whether actual or apprehended bias or failure to comply with statutory obligations.

Migration Act 1958 (Cth), ss.36, 414, 420, 422B, 424A, 430, 431

Minister for Immigration & Multicultural & Indigenous Affairs v Eshetu (1999) 197 CLR 611
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Re Refugee Tribunal ex parte H (2001) 75 ALJR 982
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749
SZAGT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1595
SZBEL v Minister for Immigration & Multicultural Affairs (2006) 231 ALR 592
SZIAY v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1680
SZILP v Minister for Immigration & Multicultural Affairs [2007] FMCA 592

Applicant: SZJKV

First Respondent: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 2752 of 2006

Judgment of: Barnes FM

Hearing date: 12 September 2007

Delivered at: Sydney

Delivered on: 12 September 2007

REPRESENTATION

Applicant: In Person

Counsel for the Respondent: Nil

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The name of the first respondent be amended to read Minister for Immigration and Citizenship.

2. The application be dismissed.

3. The applicant pay the costs of the first respondent fixed in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2752 of 2006

SZJKV

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 24 August 2006 affirming a decision of the delegate of the first respondent not to grant the applicant a protection visa.

2. The applicant, a citizen of the People’s Republic of China, arrived in Australia in December 2005 and applied for a protection visa in January 2006.  In a statement accompanying his protection visa application he claimed in essence that he feared persecution in China by the authorities because he was involved in a protest which the authorities claimed was anti-government.  In particular he claimed that he participated in a protest in an attempt to recover wages that were owing to him from a construction company of a government within China and thereafter engaged in organisation of a subsequent protest and distribution of propaganda leaflets against the construction company and also against the government.

3. He claimed that the protest in August 2005 was broken up by the police and that some of the protesters were arrested, although he managed to escape.  He claimed that after his escape in August 2005 he stayed in another part of China and that he had been put on the blacklist by police who had gone to his home many times with an arrest warrant.  Other protesters who had been fellow-workers with him for the government construction company had been sentenced to imprisonment in December 2005.  A distant relative arranged for him to travel to Australia and met his travel expenses.

4. The application was refused and the applicant sought review by the Tribunal.  He attended a Tribunal hearing.  The Tribunal recorded that he provided a copy of his passport to the Tribunal.  In its findings and reasons the Tribunal set out the applicant’s claims made in connection with his protection visa application and also set out at some length the questions and responses from the applicant at the Tribunal hearing. 

5. The Tribunal rejected the applicant’s claims because it did not accept that he was a witness of truth.  On that basis it did not accept that he was involved in an anti-government protest in August 2005 and was wanted by or of interest to the authorities because of this involvement or that the police or the PSB went to his house to find him, that there was a warrant for him in China, that he was in hiding in China prior to coming to Australia or that he left China for the reasons he claimed.  Nor did it accept that he could not or would not return to China because he feared persecution there because of his anti-government activities.  The Tribunal found that it followed from this that it did not accept that the applicant could not get protection in China from harm that he feared.

6. The Tribunal gave reasons for these findings.  It found that it was not consistent with the applicant’s claims to have been persecuted in China and feared harm there that he remained in China until December 2005 when he had a passport and visa for Japan valid from 20 July to 20 October 2005 that would have enabled him to leave China at any time after the incident he described occurring in August 2005.

7. The Tribunal did not accept as plausible the applicant’s explanation that he did not leave China before he did and seek protection in Japan because he did not know how to escape and that he owed and was owed money.  It noted that although he said he wanted to escape after his friends were sentenced in December 2005 and that he did not know whether to go or not, he had also given evidence that the situation in China was so serious for him after the incident in August 2005 that he went into hiding in a little room in a named city and had no contact with the outside until he went to Australia so that he could avoid harm from police and authorities in China.

8. The Tribunal did not accept as plausible his claims that he was in hiding in a named city, “in a little room” with no contact at all outside his hiding place because he feared harm from the authorities from August 2005 until he left China to come to Australia in December 2005. 

9. Nor did it accept as plausible his claims about his role in a demonstration in August 2005, that is that he was one of the people responsible for the projects, that he asked to speak to the employer at the demonstration and that he was one of the people who decided what to put on demonstration pamphlets at short notice.  The Tribunal found that this claim amounted to a claim that the applicant had a prominent role in the project and demonstration and was not consistent with his claims about his background and education level. 

10. The Tribunal concluded that there was no plausible evidence before it that the applicant was wanted by or of interest to authorities in China for the reasons that he claimed or that he had suffered persecution for any Convention reason.  Nor was it satisfied that the evidence established that there was a real chance that he would suffer persecution in China for a Convention reason now or in the reasonably foreseeable future.  Hence it was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution in China within the meaning of the Refugees Convention.

11. The applicant sought review by application filed in this Court on 26 September 2006.  He relies on an amended application filed on 6 December 2006.  The amended application contains three grounds.  The first ground is that the Tribunal member failed to consider the application properly and fairly.  I note that the third ground might be said to overlap with this and is addressed together in the applicant’s written submissions, which is that the Tribunal member made her decision with bias. 

12. In relation to the first ground, in the particulars the applicant contended that he had been “cheated or fooled” by the presiding member, indicating that he had provided written and oral claims and that from the concluding words of the presiding member at the Tribunal hearing he had understood that the Tribunal had accepted most of his claims and understood his explanations.  He contended that the Tribunal member had told him she did not have further questions, had not decided his case and had some concerns she had to think about.

13. It was contended that if the Tribunal regarded such concerns as the reason or part of the reason for making her decision she should have given the applicant a chance to provide further information or invite him to comment on it, but that she did not do so. 

14. The application then refers to section 420 of the Migration Act 1958 (Cth) and appears to contend that there was a failure to comply with that provision, in that the Tribunal did not pursue the objective of providing a mechanism of review that was fair and just or act according to substantial justice and the merits of the case.

15. It also appears to be contended that there was a failure to comply with section 430 of the Act, in that it is claimed that the Tribunal neither set out reasons for its decision or its findings on material questions of fact nor referred to the evidence or any other material on which the findings of fact were based.

16. I will return to the specific issues of bias and the extent to which this ground might be said to raise section 424A of the Migration Act 1958 (Cth) but more generally, insofar as the applicant takes issue with the failure of the Tribunal to put specific concerns to him for comment, the Tribunal is not under an obligation to inform an applicant of its preliminary or evaluative conclusions about material before it (see NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at 27).

17. The Tribunal’s conclusions were based on a finding in relation to credibility of the applicant.  Credibility findings are a matter for the Tribunal.  Furthermore, insofar as this ground is intended to take issue with the Tribunal’s approach to its concerns about the applicant remaining in China while he had a valid passport and visa for Japan and not accepting that he was able to hide in a room for three months after the protest if he had played the role he had claimed, the Tribunal account of what occurred in the Tribunal hearing in fact suggests that such issues were raised with the applicant.  

18. In particular the Tribunal discussed at length with the applicant concerns that it had with his evidence in relation to why he did not depart China after the claimed events of August 2005.  In that respect I note that the only evidence before the Court of what occurred in the hearing, in the absence of the transcript of the Tribunal hearing, is the Tribunal reasons for decision. 

19. Insofar as there is a suggestion of breach of section 420, there is authority to the effect that even if there were a failure on the part of the Tribunal to observe such procedures the decision would not be reviewable on that basis (see Minister for Immigration & Multicultural & Indigenous Affairs v Eshetu (1999) 197 CLR 611 at 635) but I note also that the section does not mandate specific procedures to be observed by the Tribunal or, more relevantly to this ground, the method by which it is to reach its decision. There is in any event, no evidentiary basis for the applicant’s claims about what occurred in the hearing in the absence of a transcript.

20. In relation to section 430, it is not established that the Tribunal failed to comply with its obligations to provide written reasons for its decision which met the requirements of section 431(a) to (d). In particular there is nothing before the Court to suggest that the Tribunal failed to take into account evidence or aspects of the applicant’s claims not referred to in the Tribunal reasons for decision.

21. Insofar as this ground is a general allegation of a lack of procedural fairness, I note the operation of section 422B of the Act. As will become apparent, no failure to comply with any of the provisions in the relevant part of the Migration Act has been established. More generally there is nothing in the material before the Court to suggest that there was any lack of fairness in the decision – in the Tribunal procedures or decision in any sense other than that dealt with in the relevant provisions of the Migration Act. (See for example SZBEL v Minister for Immigration & Multicultural Affairs (2006) 231 ALR 592). In that respect, I note the decision of the delegate to put the applicant on notice that a decision-maker may not accept his claims (in that instance based on his ability to depart China). Also it is apparent from the Tribunal account of what occurred in the Tribunal hearing that the Tribunal, concerned with the credibility of the applicant’s claims, in fact raised with the applicant on a number of occasions that it had difficulty accepting what the applicant said was true. No jurisdictional error is established on the basis contended for in ground 1 of the amended application.

22. The second ground in the amended application is that there was a failure to comply with section 424A(1) of the Migration Act. The particulars assert that the Tribunal relied on information contained in the applicant’s passport, in particular in relation to his Japanese visa and did not provide him with an opportunity to comment in writing on such information. However, as indicated, the Tribunal recorded that the applicant provided it with his passport at the hearing and a copy was placed on the Tribunal file.

23. Under section 424A(3)(b) the obligations in subsection (1) do not apply to information that the applicant gave for the purpose of the application for review, such as the information provided at the Tribunal hearing. Hence the obligation in section 424A(1) was not applicable to such information. Again, however, I note in that respect that it is, in any event, apparent from the Tribunal reasons for decision that the Tribunal did raise its concerns in relation to this information and why the applicant had not gone to Japan after the events of August 2005 in the course of the Tribunal hearing.

24. The third ground in the amended application is that the Tribunal member made her decision with bias.  The particulars to this ground contend that if a person like the applicant had a passport in his own name his activities would not come to the special attention of the authorities but that the Tribunal member ignored the evidence.  Reference is made to what was said in the UNHCR Handbook on procedures and criteria for determining refugee status in relation to the relevance of possession of a passport, in particular that the mere possession of a valid national passport is no bar to refugee status.

25. It is also contended that the Chinese government is corrupt and that corrupt officials are widely spread so that it was possible for the applicant to leave China with the help of his friends.  It is suggested that the Tribunal’s bias was indicated in relation to whether it would be possible for the applicant to hide in a secret place in China.  The applicant queried whether the Tribunal member had basic knowledge about the population in China and contended generally, without elaboration, that “with bias” the Tribunal had completely ignored relevant materials which strongly supported his claims, such as the 2003, 2004 and 2005 US State Department’s Country Reports on Human Rights Practices in China. 

26. An allegation of bias is a serious allegation that must be clearly articulated and proved.  As stated in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 and elaborated on at [43] to [48], it is rare for a court to find that an administrative decision-maker acted in bad faith, especially when the only thing said to be in support of this is the decision record. In this case the allegation of bias is based on the issue the applicant takes with the Tribunal findings, although in submissions and in ground 1 it seems issue was also taken with the Tribunal conduct of the hearing. As indicated there is no transcript of the Tribunal hearing before the Court.

27. It has not been established that the Tribunal reasons for decision and the material before the Court are such as to establish either actual bias or apprehended bias on the part of the Tribunal.  I note in that respect the test in relation to apprehended bias:  that a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question to be decided (see Re Refugee Tribunal ex parte H (2001) 75 ALJR 982 at [27]). In the absence of a transcript of the hearing, the concerns the applicant raised either in written or oral submissions in relation to the hearing are not such as to establish any basis for an assertion of an apprehension of bias on the part of the Tribunal. Nor is the fact that the Tribunal is said to have failed to put its concerns to him in the manner contended for in ground 1 of the amended application, given the Tribunal’s obligations, do not extend to an obligation to put its provisional reasoning to an applicant.

28. Insofar as the applicant takes issue with the Tribunal’s approach to independent country information and suggests that the Tribunal ignored independent evidence which supported his claims, there is no evidence before the Court to indicate that the applicant referred to any independent information or put such information before the Tribunal.  The Tribunal was not obliged in circumstances such as the present case to refer to independent country information, to search out and obtain information to support the applicant’s case or to make the applicant’s case for him. 

29. More generally the Tribunal is not obliged to accept a claim merely because positive evidence to the contrary is absent (SZAGT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1595 at [36] per Hely J). As elaborated on in written and oral submissions, the applicant’s concern in this respect is that the Tribunal is said to have made its finding mainly based on two issues, those being that the Tribunal did not consider that the applicant remaining in China until December 2005 while he had a valid passport and visa for Japan was consistent with his claims and that the Tribunal did not accept that he was able to hide in a room for three months after the protest if he had played the role as he claimed.

30. In written and oral submissions the applicant provided what he said was the explanation he had given to the Tribunal for his visa situation and his remaining in China.  In particular he described the circumstances in which he obtained the Japanese visa and the Australian visa and suggested that the purpose of those two visas was different.  He elaborated on what he claimed were the reasons for his actions in evidence that he had given to the Tribunal.  It was contended that the Tribunal failed to bring an independent mind to bear on the issues relating to the applicant’s visas, his hiding in Japan and his departure from China, but rather that it made findings based on nothing but “an assumption”. 

31. It is also said that the Tribunal did not consider the applicant’s claims as a whole, did not consider his evidence properly and fairly and ignored important “evidence” in relation to what he said were his special circumstances at that time (which were that he was in debt and was attempting to get money back that he was owed by the construction company).  On this basis it was contended that apprehended bias must have been established. 

32. However, the Tribunal reasons for decision reveal that it first set out the applicant’s claims as made in writing in connection with the protection visa application and also at the hearing in relation to being owed money, being helped by relatives as well as his claims about what he said occurred after August 2005 and the situation in relation to both his visa to travel to Japan and his visa to travel to Australia. 

33. In particular the Tribunal set out the applicant’s claims in relation to hiding in a little room.  It recorded that it informed him that it had difficulty accepting that he hid in a little room with no outside contacts for the period he claimed (from August to December 2005).  The Tribunal also set out at length its discussion with the applicant about when he decided he would leave China, why his passport had been obtained and his explanation that the person assisting him arranged the passport not to enable him to escape persecution but rather so that when he obtained the visa for Japan he could relax and get rid of things. 

1. The Tribunal recorded that the applicant stated that he did not want to go on a trip and did not go to Japan and that when asked why he did not do so, that he indicated that he did not know how to escape and also that he was still owed money.  The Tribunal also recorded that it put to the applicant it had difficulty accepting what he said was true as if he was persecuted as claimed he could have gone to Japan to escape harm earlier and that he did not leave China until December 2005 although his Australian visa was granted on 8 November 2005. 

2. The Tribunal recorded his explanation that his friends were sentenced in December 2005 but put to him, and he agreed, that his evidence was that he went into hiding well before that time before he feared harm and also that he was undecided about leaving even when he got the visa. 

3. From the Tribunal account of what occurred in the hearing, contrary to the applicant’s claim in the written and oral submissions, it is apparent that the Tribunal understood the applicant’s claims insofar as they were put to the Tribunal in writing and at the hearing.  Moreover it addressed such claims in its reasons for decision.  It rejected the applicant’s claims because, for reasons that it gave, it did not accept that he was a witness of truth.  On that basis it found that it could not be satisfied about the matters which he had claimed.  In particular, while addressing the applicant’s explanations, it found it not consistent with his claims to have been persecuted and to have feared harm, that he remained in China until December 2005 even though he had the passport and visa for Japan that would have enabled him to leave China after August 2005. 

4. The Tribunal did not accept as plausible the applicant’s explanation for why he did not leave China and seek protection in Japan.  It referred to his explanation but also to the fact that he had given evidence that the situation in China was so serious after August 2005 that he went into hiding in a little room and had no contact with the outside until he went to Australia to avoid harm from the authorities.  As it had foreshadowed in the Tribunal hearing, it did not accept it as plausible his claim that he was in hiding in a little room with no contact at all with the outside world from August 2005 until December 2005. 

5. The Tribunal then also addressed the applicant’s claims about his role in the demonstration which, as set out above, it did not accept as plausible, before concluding there was no plausible evidence before it that the applicant was wanted by or of interest to the authorities for the reasons that he claimed. 

6. There is nothing in the material before the Court in particular in these findings or in the Tribunal’s account of what occurred in the Tribunal hearing to support a claim of apprehended bias.  Rather, the decision record indicates that the applicant was given an opportunity to give evidence and also to comment on matters raised by the Tribunal and that the Tribunal considered the claims made by the applicant, did not ignore evidence or indeed dismiss the applicant’s claim without any consideration at all. 

7. In particular it has not been established that the Tribunal failed or appeared to have failed to bring an independent mind to bear on the issues in relation to the applicant’s visa and departure from China.  It took into account the applicant’s evidence, including his claims in relation to being owed money.  The applicant’s disagreement with the Tribunal findings in that respect seek merits review which is not available in this Court but do not establish apprehended bias. 

8. The claim that the Tribunal significantly misstated the effect of important claims or evidence that the applicant gave is also not established.  Again, the only evidence before the Court of the applicant’s claims is the written claims that he made in connection with the protection visa application (which are accurately summarised and addressed in the Tribunal reasons for decision) and the Tribunal account of what occurred in the Tribunal hearing.  The applicant’s claims as set out by the Tribunal are addressed in its reasons for decision. 

9. More generally it is contended in the written submissions that the Tribunal decision was unsupported, unreasonable and that it made capricious adverse conclusions to justify its decision and failed to address significant evidence.  In support of those contentions reference was made to two decisions of the Federal Magistrates Court.  First, SZIAY v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1680 is referred to in the applicant’s written submissions in support of the proposition that the Tribunal fell into jurisdictional error in the manner just described. However, the circumstances in SZIAY differ significantly from those in the present case. In that case the court examined each of the specific reasons given by the Tribunal for its finding that the applicant’s claims were a fabrication and identified significant misstatement of the effect of important country information, which of itself was said to reveal jurisdictional error (and I interpose to note that there is no such misstatement of the effect of important country information in this case) and unsupported, unreasonable and capricious adverse conclusions presented by the Tribunal to justify its decision. The circumstances before the Court and the reasoning of the Tribunal were such as to lead Smith FM to the conclusion that flaws in the Tribunal’s reasoning revealed a decision-maker who had not made a genuine attempt to assess all the evidence so as to make the determination required under sections 36 and 414 of the Migration Act.

10. In this instance, however, while the Tribunal made findings in relation to plausibility of aspects of the applicant’s claim, it provided an explanation for its findings, specifically in relation to its finding about the applicant not leaving Japan and his role in the demonstration.  While at first glance its failure to accept as plausible the applicant’s claim that he was in hiding does not appear to include an explanation, when read in the context of the decision as a whole and the Tribunal’s indication that it raised with the applicant that it had difficulty accepting that he hid in a little room with no outside contact for the period he claimed (that being August to December 2005) the basis for the Tribunal’s finding in that respect and its view of the inherent implausibility or lack of a convincing aspect of that claim is apparent.

11. Nor is this a case in which there is significant evidence providing support for the applicant’s claims which was not rejected by the Tribunal but which it failed to address.  The Tribunal reasons for decisions indicate that it did address the claims made by the applicant at the hearing and in the protection visa application.  Hence this is not a case in which it can be said that there are flaws in the Tribunal’s reasoning such as to reveal an absence of a genuine attempt to assess all the evidence, let alone that the decision could be characterised as having been made recklessly as discussed in SZIAY at [61].

12. Nor does the decision in SZILP v Minister for Immigration & Multicultural Affairs [2007] FMCA 592 assist the applicant. That decision was relied on in support of the proposition that apprehended bias was established. However, again, the circumstances in this case differ significantly from those considered in SZILP.  In particular there is nothing in the material before the Court to establish that the Tribunal in this case did not bring an independent mind to bear on the issues before it or to establish that the Tribunal had prejudgment in such a manner as to establish jurisdictional error by reason of bias or apprehended bias.  On the contrary, the Tribunal reasons for decision indicate that the Tribunal gave the applicant an opportunity to put evidence and address its concerns in the course of the tribunal hearing and addressed his claims. 

13. This is not a case in which a decision-maker has placed reliance on his or her own expertise in the sense that was considered in SZILP.  Nor is it a case where the Tribunal made assumptions not supported by available country information as set out above. 

14. Hence neither apprehended bias nor, indeed, a lack of reasonableness or other circumstances which might establish jurisdictional error in the senses considered either in SZIAY or SZILP is established on the material before the Court in the circumstances of this case.

15. In concluding submissions the applicant reiterated that if the Tribunal did not believe him, the Tribunal should have told him that so that at the hearing or thereafter so that he would have had an opportunity to address that issue. Issue was again taken with the Tribunal’s alleged failure to ask the applicant for his explanation for the two reasons it used to reject his claims. However as set out above, based on the Tribunal reasons for decision, it does in fact appear that the Tribunal raised its concerns at the hearing and gave the applicant an opportunity to respond. Beyond that, as indicated earlier, there was no obligation on the Tribunal to put its preliminary reasoning or reasoning process to the applicant for comment in the manner suggested, either under section 424A or otherwise in the circumstances of this case.

16. No jurisdictional error has been established on any of the bases contended for by the applicant.  Accordingly, the application must be dismissed.  The first respondent seeks costs in the sum of $3,000.  I consider that it is appropriate that the unsuccessful applicant should meet the first respondent’s costs.  The amount sought is appropriate in light of the nature of this and other similar matters.  It is also appropriate that the name of the first respondent be amended to read Minister for Immigration and Citizenship.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  21 September 2007