SZJRW v Minister for Immigration

[2007] FMCA 1099

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJRW & ANOR  v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1099

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming political persecution in China – whether the Tribunal decision vitiated by apprehended bias considered – whether the Tribunal breached s.91R(3) of the Migration Act considered – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), ss.91R(3), 422B, 424A
Federal Magistrates Court Rules 2001 (Cth)

Abebe v the Commonwealth [1999] 197 CLR 510
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126
Minister for Aboriginal Affairs v Peko-Wallsend (1985) 66 ALR 299
Minister for Immigration v Lay Lat [2006] FCAFC 61
Minister for Immigration v SGLB (2004) 207 ALR 12
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
NADH of 2001 v Minister for Immigration 214 ALR 264
NAHI v Minister for Immigration [2004] FCAFC 10
NAMW v Minister for Immigration (2004) 140 FCR 572
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
R v Metal Trades Employers Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208
Re Minister for Immigration; ex parte S20/2002 (2003) 198 ALR 59
SZBEL v Minister for Immigration (2006) 231 ALR 592
SZCIJ v Minister for Immigration Affairs [2006] FCAFC 62
SZDLR v Minister for Immigration (2005) 144 FCR 368
SZDPY v Minister for Immigration [2006] FCA 627

First Applicant: SZJRW

Second Applicant: SZKEM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3364 of 2006

Judgment of: Driver FM

Hearing dates: 18 April, 11 July 2007

Delivered at: Sydney

Delivered on: 11 July 2007

REPRESENTATION

The Applicants appeared in person

Counsel for the Respondents: Mr J Mitchell

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. The application is dismissed.

2. The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the amount of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3364 of 2006

SZJRW

First Applicant

SZKEM

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants a protection visa.  The decision was signed on 29 September 2006 and was apparently handed down on 19 October 2006. 

2. The applicants are a husband and wife from China.  The first applicant (“the applicant”) had made claims of political persecution.  I adopt as background for the purposes of this paragraphs 2 through to 4 of written submissions prepared on behalf of the respondent Minister filed on 16 April 2007. 

   The applicants:

   a)      claimed to be citizens of the People’s Republic of China;

   b)      entered Australia on 8 March 2006; and 

   c)      lodged an application for protection visas on 10 April 2006.

   On 10 May 2006 a delegate of the Minister refused to grant the applicants protection visas.

   On 13 June 2006 the applicants applied for review of that decision.

   On 16 August 2006 the applicants appeared before the Tribunal.  On the same day the applicants were provided with a letter that conveyed certain information that ultimately formed part of the reason for decision and particularised the relevance of that information (“the 424A Letter”).  The applicants responded to this letter on 29 August 2006.

   Applicants’ claims

   The applicants are husband and wife.  Only the applicant husband (SZJRW) (hereafter called the “Applicant”) made specific claims under the Refugee Convention.

   The Applicant claimed that he would be persecuted on return to China for participating in protests in Australia in March and April 2006.  He claimed that relatives and former classmates had been persecuted by authorities for reason of their political opinion.  As a consequence he has a strong dislike for communist rule and the Chinese government and wanted to live in a democratic country.  Further, he had supported protesters in China.

   Tribunal decision

   The Tribunal concluded that:

   a)It was not satisfied that the Applicant had a well-founded fear of Convention related persecution for reason of the past persecution of members of his family.

   b)The applicants would not have been granted passports if they were of any interest to the authorities.

   c)It was satisfied that the Applicant did not have a well-founded fear of Convention related persecution for reason of his past support for people involved in demonstrations in China.

   d)It was not satisfied that he had a well-founded fear of Convention related persecution for reason of his participation in a demonstration in March 2006. Further it was satisfied that the Applicant undertook the activity for the sake of strengthening his claims and therefore disregarded that conduct in accordance with s 91R(3).

   e)It was not satisfied that the Applicant had a well-founded fear of Convention related persecution arising in relation to his employment or likelihood of finding employment on return to China.

3. These proceedings began with a show cause application filed on

   
   

   16 November 2006.  The applicants asserted actual notification of the decision of the Tribunal on 26 October 2006.  On that basis I find that the application is filed within time. 

4. The applicants now rely upon an amended application filed on 2 April 2007.  That asserts a breach of the rules of natural justice.  The particulars are that the Tribunal is said to have not fairly and thoroughly considered the evidence and information provided by the first applicant.  The applicants assert that the Tribunal only considered evidence which was unfavourable.  They further assert that the Tribunal used out of date documents or information to support the decision.  Secondly, the amended application raises a no evidence ground.  The applicants assert the Tribunal made assumptions without providing adequate evidence to justify the findings and decision.  Finally, the amended application invites examination of affidavit material for additional details. 

5. The applicants rely on a substantial body of affidavit material. 

   
   

   I received most of those affidavits over the objection of the Minister's counsel.  In an affidavit filed on 16 November 2006 the first applicant deposes as to asserted facts in relation to the situation in China and his personal history.  He also deposes as to his activities in Australia. 

   
   

   To the extent that those statements are the same as his claims put to the Tribunal, the affidavit does not add anything.  To the extent that the applicant asserts facts of which the Tribunal was not made aware, the affidavit cannot support a claim of jurisdictional error.  What the affidavit does do is to provide cogent evidence of the focus of the first applicant's attention in these proceedings.  The focus of his attention is the correctness of the Tribunal decision and the risk that he says he faces in China should he return there. 

6. I received two affidavits filed on 27 March 2007 by deponents who support the applicant's claims.  I gave those affidavits limited weight as the deponents were not present in Court.  I accepted an affidavit by the applicant filed on 2 April 2007 with numerous annexures as a submission.  I also accepted a further affidavit by the applicant filed on 29 June 2007 as a submission.  In addition, I have before me as an exhibit, exhibit R1, a book of relevant documents filed on behalf of the Minister on 2 March 2007.  I also have before me two affidavits by Hayley Anne Blackman filed on 30 March 2007 and 17April 2007 which augment the relevant documents. 

7. Both applicants attended Court this morning and made oral submissions.  The pertinent submissions were made by the first applicant.  He stated that the assertion of procedural unfairness was intended to be an assertion of an apprehension of bias.  He submits that the presiding member made numerous errors in the decision and referred to incomplete and out of date information.  I accept that the second applicant's name was misspelt on the cover page of the Tribunal decision at cook book page 111.  I also accept that the presiding member incorrectly identified the first applicant's date of birth as

   
   

   30 October 1972 on page 121 of the court book.  The applicant's date of birth is actually 13 October 1972 (see page 1 of the court book).  I also accept that there were other arguable spelling and grammatical errors in the decision of the Tribunal. 

8. The applicant took me to page 128 of the court book and submitted that the presiding member was wrong in stating that he had not provided a reference to where the website could be accessed that he said contained his name in relation to political protest activity.  The presiding member said:

   However, again the Applicant provides no evidence that his name is on a protest web site such as a copy of it or provided a reference to where it can be accessed and the Tribunal does not accept this claim.

   In fact the applicant had provided a website address (see pages 41 and 79 of the court book).

9. The applicant took me to page 120 of the court book.  He submits that the country information referred to by the Tribunal in relation to passport checks carried out by the Chinese authorities was out of date and did not match his personal experience in 2005.  In their submissions in reply the applicants took me to the decision of the delegate at pages 69 and 70 of the court book.  There at the bottom of page 69 the delegate had referred to more complete and recent information concerning Chinese passport and exit procedures.  Curiously, in its decision the Tribunal did not refer to the country information referred to by the delegate, which pointed to an easing of restrictions in obtaining passports, particularly in the larger cities. 

10. The first applicant also made submissions in relation to political freedom in China that were clearly directed to the merits of the Tribunal decision.  He further submitted that the Tribunal was wrong in its statements on page 128 of the court book concerning the hunger strike that he claimed to have participated in outside the Chinese Consulate in Sydney.  The first applicant submits that the Tribunal was wrong in saying that it was only the applicant and one other person who engaged in the hunger strike.  He said this was a much larger exercise involving many people. 

11. The Minister's submissions in relation to the grounds advanced in the amended application are set out in paragraph 5 of the Minister's submissions. 

    Submissions on the application for judicial review

    The applicants rely upon an amended application filed on 2 April 2007. 

    The First Respondent makes the following submissions in respect to that application.

    In respect to ground 1:

    a) The Tribunal complied with its obligations in the procedural code constituted by Division 4 of Part 7: s 422B; Minister of Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62. Specifically, the Tribunal’s decision was based on independent country information, the Applicant’s testimony and the material submitted by the Applicant. All of these types of information were excepted from the obligations in s 424A(1) because the information was either given by the Applicant for the purpose of the application for review or was not specifically about the applicants: see NAMW v Minister for Immigration and Multicultural and Indigenous Affairs: (2004) 140 FCR 572; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92; SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35]. In any case, the information was put to the applicants and its relevance was particularised in the 424A Letter. Further, the issues arising from that information were put to the applicants for their comment at the hearing and in the 424A Letter: SZBEL v Minister for Immigration and Multicultural Affairs (2006) 231 ALR 592 at [33] – [43]. Having complied with ss424A(1) and 425 the Tribunal had no further obligations to accord the applicants procedural fairness: Lay Lat; SZCIJ.

    b)   In respect to particular (a), the Tribunal considered the applicants’ evidence: CB 114-119 and 124.  The weight given to the material before the Tribunal was a factual matter for the Tribunal and it is not proper for the Court to review the Tribunal’s findings and appraisals in that respect: Minister for Aboriginal Affairs v Peko-Wallsend (1985) 66 ALR 299 at 309; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-2, 291-2; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35–36

    c)   In respect to particular (b), there was no independent country evidence before the Tribunal that the country information referred to by the Tribunal member was incorrect.  If the applicants thought that the information conveyed by the independent country information, particularised in the 424A Letter and relied upon by the Tribunal, was incorrect it was for the applicants to put material before the Tribunal that would satisfy it that this was the case: Abebe v the Commonwealth [1999] 197 CLR 510 at [187]. There is no evidence of the applicants having done so. Nevertheless, even if the independent country information was out of date, as alleged by the applicant, and the Tribunal relied upon that information in its decision that does not necessarily mean that the decision is vitiated by jurisdictional error: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]; SZDLR v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 368 at [44]; Quin at 35-6.

    In respect to ground 2, the inferences drawn by the Tribunal were open on the evidence and accordingly there was no error of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353, 355-7; Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 at 137-8. Alternative inferences may have been available. However, that is not to the point: see Re Minister for Immigration and Multicultural Affairs; ex parte S20/2002 (2003) 198 ALR 59 at [128] ff. The inferences drawn by the Tribunal were clearly open on the evidence and were not perverse, in the sense of lacking probative material in support of those inferences: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 368; see also NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs 214 ALR 264 at [115].

    In respect to the further allegations in the applicants’ affidavit filed on 2 April 2007 the First Respondent makes the following submissions:

    a)   The spelling, typographical and minor factual errors made by the Tribunal do not demonstrate that the Tribunal breached inviolable limitations on its jurisdiction: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76]; R v Metal Trades Employers Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 248.

    b)   The factual findings made by the Tribunal in respect to the ease with which the applicants’ legally obtained passports were reasonably open on the material before the Tribunal, specifically the independent country information.  The applicants were given an opportunity to respond to that information.  The Court cannot review the correctness or fairness of the Tribunal’s findings based on that material: Quin.    

    c)   The Tribunal did not make adverse credibility findings in respect to the applicants’ claims.  The Tribunal accepted their claims in respect to their activities in China and Australia and the claims in respect to the past persecution of the Applicant’s relatives.  The Tribunal found that the applicants’ claims were embellished in part and was not satisfied, in accordance with s 91R(3), that the claims in respect to their activities in Australia were made otherwise than to strengthen their refugee claims.  These findings are not findings that the applicants could not be believed or were otherwise implausible.

    d)   The allegation that the Tribunal made findings that reflected its ignorance of the nature of the authoritarian regime in China is misconceived.  The Tribunal’s findings in respect to the situation in China were open based on the evidence before it and were not perverse in the sense of being made contrary to all of the information before it.  It was for the applicants to address these matters and satisfy the Tribunal of their claims.  It was not for the Tribunal to make inquiries: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [1], [42] and [43]. That the Tribunal did not give the applicants’ evidence the weight that the applicants would have liked, is not reviewable by the Court.

    e)   The remainder of the allegations relate to the applicants’ claims to have a well-founded fear of persecution by reason of their political opinion.  Much of the evidence in support of these claims, particularly the exhibits to the affidavits, post date the Tribunal’s decision.  Accordingly no error in the Tribunal’s consideration of the applicants’ claims can be made based on this evidence as it was not before the Tribunal.  In any case it is not for the Court to determine these matters as the Court only has jurisdiction to determine whether the Tribunal’s decision was made under the Act: S157/2002.

12. I accept that s.422B of the Migration Act 1958 (Cth) (“the Migration Act”) modifies the application of the common law rules of procedural fairness in relation to Tribunal hearings. However, s.422B does not exclude that part of the rules of procedural fairness that deals with an apprehension of bias. However, minor typographical or grammatical errors and minor errors of fact by the Tribunal fall far short of establishing a reasonable apprehension of bias. In my view, nothing has been presented by the applicants that would satisfy a court that a fair-minded observer aware of the circumstances would apprehend that the presiding member had not brought an unprejudiced mind to bear on the matter before him. I reject the claim of apprehended bias.

13. The use by the presiding member of country information and the alleged error by the presiding member in relation to the applicant's reference to a website might support an alternative contention that the Tribunal overlooked relevant material.  It is troubling that the Tribunal relied upon country information dealing with passport checks carried out by the Public Security Bureau in China to support a conclusion that the applicants would not have been granted PRC passports and exit permits if they were of any interest to the PRC authorities.  The country information referred to by the Minister's delegate on pages 69 and 70 of the court book was more complete and more up to date, particularly in its first paragraph.  It is difficult to understand why the Tribunal did not refer to that information. 

14. However, the question of the ability of the applicants to obtain passports to leave China was not in itself determinative of the outcome of the case before the Tribunal.  The Tribunal found on the basis of the first applicant's evidence at the hearing conducted by the Tribunal that he had not been involved in any activities of any real consequence in China and was of no interest to the Chinese authorities prior to his departure (see page 126 of the court book).  In my view, on the basis of the applicant's own account, he had not been subject to persecution in the past in China and the Tribunal's finding was independently supported by that information.  I find that no jurisdictional error is involved in the Tribunal's failure to have regard to relevant material in the form of country information referred to by the Minister's delegate about the increasing liberalisation of Chinese passport and exit procedures. 

1. There is no substance to the no evidence ground.  I agree with the Minister's submissions in relation to ground 2. 

2. On page 128 of the court book the Tribunal reached conclusions in relation to the applicant's conduct in Australia. The Tribunal accepted that the applicant had been involved in several political demonstrations in Australia against the Chinese government. However, the Tribunal was not satisfied that the extent of the applicant's involvement placed him in any serious risk of harm should he return to China. Further, the Tribunal went on to disregard that conduct pursuant to s.91R(3)(b) of the Migration Act on the basis that the Tribunal was not satisfied that the applicant undertook what the Tribunal described as “token” activity in Sydney for reasons other than strengthening his claims for a protection visa.

3. The operation of s.91R(3) of the Migration Act remains somewhat uncertain. It remains uncertain whether the Tribunal is required to disregard conduct in Australia for all purposes if unsatisfied that the conduct was engaged in for a reason other than supporting protection visa claims. There is a question whether the Tribunal is required by s.91R(3) to disregard the consequences of conduct as well as the conduct itself. The applicant has gone to considerable trouble in his affidavit material presented to the Court to establish himself as an opponent of the Chinese government. He has engaged in certain public activity apparently directed to the same end. It is possible that a person in the position of the applicant who undertakes such activities for the purpose of enhancing claims to a protection visa may nevertheless place themselves at risk of serious harm in their home country. That possibility places decision-makers in a difficult position.

4. Section 91R(3) was apparently enacted by the Parliament to deal with applicants who attempt to force the hand of decision-makers in the manner in which the applicant was found to have done. However, the Convention requires decision-makers to make a forward-looking assessment of the risk of harm faced by an applicant for protection. The Convention exists to protect foolish as well as worthy applicants.

5. In circumstances where a decision-maker entertains doubt as to what the consequences may be of conduct engaged in in Australia, it would be appropriate for a decision-maker to deal with the possibility that he or she may be wrong in concluding that the conduct was engaged in simply for the purpose of strengthening claims for a protection visa. Mr Mitchell, for the Minister submits that that was in essence what the Tribunal was doing in this case in dealing first with whether the first applicant's conduct placed him at risk of harm and then disregarding the conduct. I accept that submission, although it would have been more clear if the Tribunal had dealt with the impact of s.91R(3)(b) first and then gone on expressly to consider what the position might be if the Tribunal was wrong in its first conclusion.

6. The Tribunal has met its obligations both under the Migration Act and under the Convention. I find that the decision of the Tribunal is free from jurisdictional error. It is, therefore, a privative clause decision and the application must be dismissed. I so order.

7. The application having been dismissed, costs should follow the event.  The Court scale calls for a costs order of $5000 after a final hearing.  The Minister seeks $7000 on the basis that the Minister's actual costs exceed $9000.  The Minister submits that additional costs were incurred by reason of there being an extra hearing date in this matter and because additional work had to be done in preparation for today's hearing, both in relation to the volume of material presented and in relation to the withdrawal of the applicant's solicitor. 

8. The applicants were originally represented by Mr Stephen Pu.  His position had become at least uncertain at the time this matter was listed for hearing on 18 April 2007.  However, he had failed to withdraw from the record in accordance with the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). He did not attend on 18 April 2007 and I required his attendance in order for him to explain his conduct. He presented two letters, one of which was a letter to the applicants notifying them of his intention to withdraw. The second applicant told me from the bar table that she had been handed that letter by Mr Pu. Whatever the real position may have been, the applicants were aware that they had lost their legal representation only a short time before the hearing on 18 April 2007 and I decided that an adjournment was required.

9. I made orders which, among other things, required compliance by Mr Pu with the Federal Magistrates Court Rules concerning cessation of acting. I am satisfied that he has complied with those orders. On

   
   

   18 April 2007 the Minister's representative had made an oral application for costs against Mr Pu and I listed that issue for hearing today.  Subsequently, the Minister's solicitors advised the Court that the application would not be pursued.  Both applicants also told me from the bar table today that they did not wish to pursue any application for costs against Mr Pu. 

10. To the extent that costs were thrown away by reason of the adjournment of the hearing on 18 April 2007, that came about because of the late withdrawal by Mr Pu and his failure to demonstrate compliance with the Federal Magistrates Court Rules on ceasing to act. In these circumstances, where there is a question of the liability of a legal practitioner for costs thrown away but no party wishes to pursue that issue, the costs thrown away by reason of the adjournment should lie where they fall. Accordingly, the applicants should not be required to bear the burden of the costs of the hearing on 18 April 2007 or the costs of correspondence between the Minister's solicitors and Mr Pu about his position in the proceedings.

11. However, the applicants have presented the Court with a very substantial volume of additional material with which the Minister has had to deal.  That calls for a costs order somewhat in excess of scale costs.  I will order that the first and second applicants pay the costs of the first respondent of and incidental to the application fixed in the sum of $6000. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Driver FM

Deputy Associate: 

Date:  16 July 2007