SZJSB v Minister for Immigration - [2007] FMCA 1001

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJSB v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1001

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

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 422B; 424A; 474; pt.7 div.4; pt.8 div.2

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668

Applicant:

SZJSB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG3370 of 2006

Judgment of:

Emmett FM

Hearing date:

25 June 2007

Date of last submission:

25 June 2007

Delivered at:

Sydney

Delivered on:

29 June 2007

REPRESENTATION

Applicant appearing on his own behalf

Counsel for the Respondent:

Mr S. Free

Solicitors for the Respondent:

Ms H. Dejean, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3370 of 2006

SZJSB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

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

20 September 2006 and handed down on 17 October 2006 (“the Tribunal”).
The Applicant was born on 1 December 1963 and claims to be from the People’s Republic of China (“the PRC”) and of Han ethnicity (“the Applicant”).
On 28 March 2005, the Applicant arrived in Australia, having legally departed from Shanghai Pudong International Airport on a passport issued in his own name and a visa issued on 15 May 2005.
On 28 April 2005, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant claimed that he feared persecution by the Chinese authorities for speaking out against the Chinese Communist Party.
On 16 September 2005, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 24 October 2005, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 9 December 2005, the Tribunal affirmed the decision of the Delegate not to grant a protection visa (“the earlier constituted Tribunal”).
The Applicant sought judicial review of that decision in this Court and, on 31 March 2006, Federal Magistrate Scarlett remitted the matter to the Tribunal for redetermination according to law.
On 20 September 2006, the Tribunal, differently constituted, affirmed the decision of the Delegate not to grant a protection visa (“the Tribunal Decision”). This is the decision currently under review.
On 16 November 2006, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceeding

On 25 May 2006, the Tribunal wrote to the Applicant, pursuant to s.424A of the Act, identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment upon it.
On 26 May 2006, the Tribunal invited the Applicant to come to a hearing on 17 July 2006.
On 14 July 2006, the Applicant informed the Tribunal that he was unwell and requested a postponement of the hearing date. A medical certificate was faxed to the Tribunal by the Applicant, in support of this claim, on the same date. The medical certificate simply stated that the Applicant was suffering from “medical illness”.
On receipt of this information the Tribunal contacted the doctor responsible for issuing the medical certificate and, in a case note dated 17 July 2006, noted his statement that he “did not believe on the basis of the way the applicant presented that he would have been so unwell as to have been unable to attend an interview for an hour or two and then go home.”
On the same day, 17 July 2006, the Tribunal wrote to the Applicant, pursuant to s.424A of the Act, identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment upon it. This information included six issues regarding the Applicant’s alleged political activities, his claims of rank in the People’s Libertarian Army, his claims regarding his attendance at the 1989 Tiananmen Square incident and his arrest and his claims that his situation in the PRC amounts to persecution for a Convention reason.
On 9 August 2006, the Applicant faxed to the Tribunal a request for a hearing at which the Applicant would answer the questions of the Tribunal and address the issues raised in the Tribunal’s letter dated

17 July 2006. On 10 August 2006, the Tribunal granted the Applicant’s request and invited the Applicant to come to a second hearing on

13 September 2006.
On 13 September 2006, the Applicant attended a hearing before the Tribunal at which he gave oral evidence. The Applicant’s claims before the Tribunal and the decision of the Tribunal are accurately summarised in the written submissions of counsel for the First Respondent as follows:
“3. The applicant claimed to have a well founded fear of persecution in the PRC because he had been targeted by the PRC authorities since 1989, when the applicant says he was involved in the student protests in Tiananmen Square. The applicant claimed that he had been imprisoned for 10 years from 1989, that he had been regularly called in for questioning by police after his release from prison and that he had been detained for 20 days in June 2004 (after an incident in May 2004 In which he had made indiscreet comments to a friend while intoxicated).
4. The RRT, by a decision signed on 20 September 2006, affirmed the decision of the delegate (“second RRT decision”). The RRT was not satisfied that the applicant had a well-founded fear of persecution, as it was not satisfied that the applicant was truthful in his evidence and his claims. The RRT gave a number of reasons for this adverse credibility finding:
a. In response to questioning at the hearing about how the applicant had been identified and singled out by the authorities after the student protests at Tiananmen Square, the applicant raised a new claim that he was an organiser/leader of the Communist Party Youth League. The RRT was not satisfied that the applicant had been arrested for this reason and found that the applicant had invented the claim that he was an organiser/leader of the Communist Party Youth League in order to enhance his claim.
b. At the hearing the applicant claimed that he had been arrested one week after the break up of the Tiananmen Square protests, whereas in his earlier written claims the applicant had claimed that hew as arrested two months after the break up of the protests. After questioning from the Tribunal the applicant eventually agreed that he was not detained, arrested, questioned or otherwise harassed by the PRC authorities until two months after the break up of the protests. The RRT found that the applicant had sought, in his account of his arrest, to embellish if not fabricate that part of his claims;
c.At the hearing the applicant claimed that he had been required to report to a police station once per week from the time of his release from prison. In his previous written claims the applicant had said that he had been called in by police for questioning “whenever there was an event”. The RRT was not satisfied that the applicant had been questioned on a weekly basis or that he had been questioned “whenever there was an event”. The RRT found that the applicant had sought to embellish this part of his claims; and
d. The RRT found that if the applicant did come to the adverse attention of the PRC authorities in May 2004, it was not because of his political views but because of disorderly behaviour.”

The proceeding before this Court

On 16 November 2006, the Applicant filed an application in this Court for judicial review of the Tribunal’s decision.
The Applicant was unrepresented at the hearing before this Court although had the assistance of an interpreter. The Applicant confirmed that he relied on the grounds of review contained in his application filed on 16 November 2006, those being as follows:
“1. My claims to the refugee review tribunal was not given enough (sic) weight. During the hearing which was held on 13 september 2006 the Tribunal member has said lots of things to me which may lead her to make final decision. She said that she believed that I was a refugee. But because I had missed many opportunities to appear before the tribunal, she doubted the credits of my words. She said I didn’t attend the first hearing given by the Tribunal in October 2005, I was late for first direction hearing at Federal Magistrate Court on 6 March, 2006, and I postponed the second times hearing organized by Tribunal in July 2006 after I had won my case in the Federal magistrate court and my application was remitted to RRT in March 2006, although I had provided doctor certificate. She said because of those delays she believed that I was trying to postpone my application and I was not a true refugee.
in her decision letter, however I didn’t find any words mentioned about her doubt on my credibilities because of those accidents. She simply found some other excuses to refuse my application. I strongly opposed that decision because she didn’t make her decision base on the facts and truth. She made a decision base on her own judgment and imagination.
2. Before the tribunal member made her final decision, she didn’t give me an opportunity to comment on the decision that she was going to make. She failed to provide me an opportunity to explain the doubts she held in her mind about my application. She requested a letter before the hearing about why I was unable to attend the first arranged hearing. But she failed to request another written explanation about her other doubts about my application.
3. I don’t think it is fair for the case officer to make a decision base on some accidents happened on me and laid out of my control. I have provided evidence to prove the persecution I had suffered in China. The case officer had also admitted during the hearing that she believed that I was a refugee. However in the decision letter she didn’t mention a word about it. I think the member has not complied her written decision with her words at the hearing.”

Ground 1

The Applicant’s complaint in ground 1 appears essentially to be a disagreement with the adverse credibility findings made by the Tribunal. As such, the Applicant is seeking merits review by the terms of this ground. This Court cannot undertake that process (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 272). Further, evaluation of the Applicant’s evidence and the making of credibility findings is a matter for the Tribunal of fact (Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J).
If ground 1 is seeking to allege that the Tribunal’s decision is affected by actual bias or apprehended bias, such an allegation is serious and requires evidence (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668).
A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims made by the Applicant before it, evaluated the evidence and material before it, made findings of fact based on the evidence before it and reached conclusions having regard to those findings of fact. The findings and conclusions of the Tribunal were open to it on the evidence and material before it and for which it provided reasons.
The Tribunal set out with some particularity the reasons that it was not satisfied that the Applicant was a witness of truth. These are addressed below.
In considering the Applicant’s claim of arrest in 1989 due to his participation in the Tiananmen Square protest, the Tribunal noted that the Applicant claimed in his protection visa application to have travelled to Beijing on the night before the protest on 30 May 1989 and that he remained in Tiananmen Square until 4 June 1989. The Tribunal noted that the Applicant stated that when the PRC authorities attacked the demonstrators the Applicant was able to flee and return home, although he did not leave his house or work for a month. At the hearing before the Tribunal, the Applicant claimed that he was in prison for ten years merely for attending the 1989 protest.
The Tribunal noted that independent country information before it indicated that tens of thousands of people participated in the protest and were either imprisoned, detained, arrested, questioned or harassed by the PRC authorities.
In an effort to understand why he had been imprisoned for ten years as a result of his attendance at the protest the Tribunal noted that it asked the Applicant how he was identified as a protester. The Tribunal found that it was “difficult to elicit responses from the applicant”. The Tribunal noted that eventually it understood that the Applicant was alleging he was identified on surveillance tapes that surrounded Tiananmen Square thereby leading to his arrest and detention.
The Tribunal noted that it put to the Applicant, given the Applicant lived some four or five hours from Beijing by car and that he was a mere attendee at the protest, it did not appear plausible that he would be recognised merely because he appeared on a surveillance tape. The Tribunal noted the Applicant’s response that all persons in attendance at Tiananmen Square protests were harmed.
The Tribunal noted that when it put to the Applicant again that it did not think it plausible that he would have been identified or imprisoned for ten years merely for attending with hundreds of thousands of others, the Applicant claimed for the first time that he was “an organiser/leader of the Communist Party Youth League in his home city.” The Tribunal noted that the Applicant confirmed that he had not made this claim previously and when asked why this was so, the Tribunal noted the Applicant responded that no one had asked him.
The Tribunal wrote to the Applicant on 17 July 2006, pursuant to s.424A of the Act informing the Applicant that, due to the lack of detail he had provided, it may not accept that he either attended the Tiananmen Square protest or that he had been arrested, at least for the reasons he claimed. The Tribunal noted the Applicant’s response that he would explain his claims at the hearing. In considering this evidence, the Tribunal noted that it wondered whether the Applicant’s new claims were submitted to enhance his claim of protection in Australia.
The Tribunal was not satisfied that the Applicant was “genuinely credible” and stated that it did not intend to give him the benefit of the doubt. The Tribunal rejected the Applicant’s claim of being arrested in 1989, at least for the reason he claimed for reasons it identified and which are referred to below:
i)The Tribunal noted that it sought to explore with some particularity the Applicant’s claim of being an organiser/leader of the Communist Party Youth League and was unsatisfied by the general nature of the Applicant’s responses to the request for more detail of his responsibilities within the Communist Party Youth League. The Tribunal found that, notwithstanding more than fifteen years had passed since the Applicant’s alleged involvement with the Communist Party Youth League, it had serious doubts that he was involved at all having regard to the paucity of the detail he was able to provide. That finding also coloured the Tribunal’s adverse finding of the Applicant’s claim to have been identified on surveillance tapes. The Tribunal found that the Applicant made the claim of being an organiser/leader of the Communist Party Youth League in order to enhance his claim of protection in Australia.
ii)In considering the Applicant’s evidence about the timing of his arrest, the Tribunal noted that in his protection visa application the Applicant asserted that he was arrested some two months after the protest, whereas, at the hearing before the Tribunal, he claimed to have been arrested a week after the protest. However, during the hearing following the Tribunal’s questions, the Applicant reverted to his original claim of having been arrested two months after the protest. The Tribunal found that the inconsistencies in the Applicant’s evidence on this issue did not arise due to errors of interpretation or “lack of capacity on the Applicant to prosecute his case”. The Tribunal found that the Applicant was embellishing his claims for the purpose of enhancing his claim to protection in Australia.
iii)The Tribunal noted that it placed no weight on a release certificate provided by the Applicant in support of his claims for a protection visa application. The Tribunal noted that the certificate stated that the Applicant had been released from prison after he was sentenced for a term of fifteen years on 29 October 1999 “for having committed crime of injury.” In considering the release certificate, a fair reading of the Tribunal’s decision makes it clear that it placed no weight on the certificate as corroborative of the Applicant’s arrest and detention for a Convention related reason.
The Tribunal then went on to consider the Applicant’s claims of persecution following his release from detention in October 1999 in that he would be called to the police station to be questioned “whenever there was an event” and, otherwise, was required to report every week to the police station for the five year period up to when he left the PRC in 2005.
The Tribunal then noted that the Applicant objected to the manner in which the Tribunal questioned him and stated it was “like the police”. The Tribunal noted that it was aware that, when conducting an inquisitorial proceeding, the Tribunal is responsible for testing evidence and for making relevant findings of fact. The Tribunal also noted that it was aware that the Applicant was not represented at the hearing. The Tribunal then had regard to the principles involved in whether a fair minded lay observer or a properly informed lay person may apprehend bias by a tribunal in the manner of its decision making or the decision itself. The Tribunal noted that it was “not certain as to my ultimate findings until after drafting the Findings and Reasons.” The Tribunal noted that it was aware of the need to provide applicants with a real opportunity to provide evidence and make submissions in support of their case. The Tribunal also noted that at times unrepresented applicants do not provide the kind of detail that might be anticipated from someone who had experienced that which was being claimed.

However, having noted the above, the Tribunal rejected the Applicant claim of being required to attend the local police station every week for five years, principally because the Applicant had not made such a claim previously. The Tribunal was also not satisfied that the Applicant was detained or questioned “whenever there was an event”. The Tribunal found that the Applicant sought to enhance his claim of protection in Australia.
The Tribunal then noted the Applicant’s claim that on 16 May 2004, whilst intoxicated he made clear to his friend “the despair hidden in his heart for so many years”. The Tribunal noted the Applicant claimed he was detained for a further twenty days and required to write a self criticism report before his release and was warned that any further detention would mean he would never be released. The Tribunal noted that the Applicant objected to the detailed questions put to him on this issue by the Tribunal. The Tribunal stated that it did so in order to understand his case. The Tribunal was not satisfied that there was a real chance that the Applicant would express his convictions in the PRC were he to return and for that reason would not come to the adverse attention of authorities for any Convention reason.
The Tribunal was not satisfied that an essential and significant reason for the Applicant’s arrest and detention in May 2004 was for a Convention reason. The Tribunal also had regard to the Applicant’s ability to reside safely in the PRC after his alleged release from his alleged month long detention in May/June 2004 and found that the Applicant was not of continuing adverse interest to the PRC authorities, should he return to the PRC.
Ultimately the Tribunal found that none of the Applicant’s material claims to invoke protection obligations in Australia were true.
The Applicant submitted to this Court that the Tribunal told him that it found that he was in fact persecuted in the PRC. The Applicant also submitted that the Tribunal told him that he fitted the grounds of the Convention, however, because he did not go to the hearing his claims were rejected. It was pointed out to the Applicant by this Court that such an allegation would require evidence, such as a transcript of the hearing. The Applicant had been directed in November 2006 by this Court to file and serve any further evidence on which he intended to rely, including any transcript by March 2007. The Applicant stated the he could not speak English and did not know how to obtain a transcript of the tape. However, in circumstances where he has had more than six months to inform himself about how he may go about having a transcript prepared, and there being no other evidence before this Court of any attempt made by him to seek to obtain such transcript, (that matter having been put to him by this Court), this Court finds the Tribunal’s decision is an accurate record of the hearing, albeit it may not encompass everything said at the hearing.
There is nothing on the face of the Tribunal’s decision, nor any material in the bundle of relevant documents, identified as the Court Book and marked Exhibit 1R, and no evidence provided by the Applicant to suggest the Tribunal approached the making of its decision, including the conduct of its review, other than with a mind open to persuasion.
The findings and conclusions referred to above were open to the Tribunal on the evidence and material before it and for which it provided reasons.
Accordingly, ground 1 is rejected.

Ground 2

Ground 2 appears to complain that the Tribunal did not put to the Applicant its final findings and conclusions prior to the making of its decision.
The Applicant was given an opportunity to comment on issues of concern that the Tribunal raised with the Applicant at the hearing. The obligations of natural justice are confined by s.422B of the Act to those obligations in pt.7 div.4 of the Act. None of those obligations require the Tribunal to give an Applicant an opportunity to comment on its final reasons before handing down its decision. As submitted by counsel for the First Respondent, the Applicant was invited to a hearing before the Tribunal and given an opportunity to give evidence and present arguments relating to issues arising in relation to the decision under review. The Applicant attended the hearing. The Tribunal’s decision set out its decision, the reasons for its decision, the findings on material questions of fact and referred to evidence and other material on which its findings were based.
In the circumstances, the Tribunal has complied with the statutory obligations imposed by it under the Act in the making of its decision, including the conduct of its review.
Accordingly, ground 2 is rejected.

Ground 3

To the extent that ground 3 is not dealt with above, ground 3 does not disclose an error reviewable by this Court going to the Tribunal’s jurisdiction. It essentially disagrees with the Tribunal’s decision. As stated above in these Reasons, it is not open to this Court to conduct merits review. Further, as stated above in these Reasons, there is no evidence before this Court to corroborate the Applicant’s allegation that “the case officer had also admitted during the hearing that she believed that I was a refugee.” See paragraph 43 above in these reasons.
Accordingly, ground 3 is rejected.

Conclusion

The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court, commenced by way of application filed on 16 November 2006, is dismissed with costs.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 28 June 2007