SZJWM v Minister for Immigration
[2007] FMCA 1157
•28 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJWM v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1157 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate not to grant a protection visa – applicant is a citizen of the People’s Republic of China – claiming fear of persecution due to police corruption – allegation of bias – no evidence of bias – no reviewable error. |
| Migration Act 1958 (Cth), ss.424A(1), 425, 424A(3)(b), 441A(4)(c)(ii), 474(2). |
| Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Attorney-General of New South Wales v Quin (1990) 170 CLR 1 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 SZBEL v Minister for Immigration & Multicultural Affairs (2006) 231 ALR 592 SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 |
| Applicant: | SZJWM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3744 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 June 2007 |
| Date of Last Submission: | 28 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 28 June 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Mr J. Mitchell |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,900.00.
I will allow (6) six months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3744 of 2006
| SZJWM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”). In its decision signed on 20th October and handed down on 14th November 2006, the Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection (Class XA) visa. The applicant filed an application for judicial review on 14th December 2006. In that application she seeks:
1)a declaration that the Tribunal's decision was invalid and contrary to law;
2)an order that the Tribunal decision should be set aside;
3)an order in the nature of mandamus remitting her application to the Tribunal for determination in accordance with law.
The background to this matter is that the applicant is a citizen of the People’s Republic of China. She arrived in Australia on 16th April 2006 and applied for a protection (class XA) visa on 31st May.
On 11th July 2006 a delegate of the Minister refused her application for a visa. On 10th August 2006 the applicant applied to the Tribunal for review of that decision. The application did not include any other documents and gave as an address for correspondence an address being a box number at “460 Pitt Street, Sydney”.
The Tribunal wrote to the applicant at her residential address on
28th August 2006. The Tribunal invited the applicant to attend the hearing on 11th October 2006. Some time later the Tribunal observed that the applicant’s residential address was not her authorised address in her application and so on 5th October 2006 the Tribunal wrote to the applicant at the box number at 460 Pitt Street, Sydney, acknowledging receipt of her application. The following day, on 6th October, the Tribunal wrote to the applicant at that address inviting her to attend a hearing on 20th November 2006. Those dates for the two hearings were clearly selected by the Tribunal to comply with the requirements for a prescribed period of notice. The applicant in fact forwarded a change of contact details document to the Tribunal on 25th October giving her residential address as a contact address and also a new postal address, being a post office box in the suburb where she lived.
The applicant in fact attended the Tribunal on 11th October 2006, being the earlier of the two hearing dates. The Tribunal sets out at page 63 of the Court Book that when the applicant appeared on 11th October in the expectation of a hearing, the Tribunal proceeded with the hearing.
At page 64 of the Court Book the Tribunal records that there was a Mandarin interpreter present and that the Tribunal member asked the applicant whether she wished to proceed with the hearing on
11th October as opposed to the later date in November. The Tribunal recorded that the applicant stated that she wished to proceed with the hearing. The applicant presented her passport to the Tribunal and the Tribunal did in fact proceed with the hearing. A copy of the Tribunal decision record can be found in the Court Book at pages 59 to 69.
The Tribunal summarised the applicant’s claims that she left the country after an incident on 5th December 2005. That incident involved the applicant going to dinner at a restaurant with a woman friend and the woman’s husband. During the evening another man who had been lent money by the friend’s husband spoke to the husband and an unfortunate scene occurred in which some followers of the other man beat the applicant’s friend’s husband so seriously that he was hospitalised and subsequently died. The applicant said that the police did not investigate the matter but her friend made a considerable degree of public agitation about the incident and the applicant said that in January 2006 the police came to her house and searched the house. They took her to an office of the Public Security Bureau and she was detained for more than a month and was forced to confess anti‑government activities. She claimed to have been beaten by the police and was eventually released. She also claimed that her friend had never been released by the police. She said that the police continued to harass her and that her company went bankrupt. Eventually she sold her property to raise money and on 13th April 2006 she left China.
The Tribunal questioned the applicant in some detail over the incident where the friend’s husband was fatally beaten and about her subsequent harassment and detention by the police. The Tribunal referred to independent country information at page 67 of the Court Book, being a report from the United States Department of State, being a country report on human rights practices in China of 8th March 2006 relating to the endemic problem of corruption. The Tribunal's Findings and Reasons are set out at pages 67 to 69 of the Court Book.
The Tribunal found that the applicant was a citizen of China and I note that the Tribunal had opportunity to inspect the applicant's passport issued by the People’s Republic of China. The Tribunal accepted that the authorities in China engage in corrupt practices but considered that key aspects of the applicant's account of her claimed experiences were not credible. The Tribunal did not accept the applicant’s claim that she had been arrested before she left China and was only released on the understanding that she would leave China and faced re‑arrest if she were to return. The Tribunal then set out at page 68 of the Court Book the reasons why the applicant's account of this matter was not accepted. The Tribunal then concluded:
For all the reasons set out above, the Tribunal does not accept that the applicant was a key witness to a murder and that she along with Ms Zhang approached the PSB or media outlets about this, that she was arrested and tortured in detention and that she was threatened as a means to silence her and then released on the understanding that she would leave China. As the Tribunal does not accept these events, the Tribunal does not accept that she faces re-arrest or threats to her life on her return to China.
(See page 68 of the Court Book).Accordingly, the Tribunal did not accept that the applicant had a well-founded fear of persecution for a Convention reason on her return to China. I note that a typographical error appears on page 68 where the word “not” has obviously been omitted because in context what the Tribunal clearly intended to say was:
Accordingly, the Tribunal does not [emphasis added] accept that the applicant has a well-founded fear of persecution for a Convention reason on her return to China.
I would comment at this stage that there is an obligation on the Tribunal to conduct thorough proofreading of its decisions which are subject to judicial review.
The applicant seeks judicial review of this decision and claims, first, that there was an error of law in the decision constituting a jurisdictional error and, second, that there as a procedural error in the decision constituting an absence of natural justice. The particulars of those two grounds can be summarised as follows:
1)a failure to comply with s.424A(1) of the Migration Act 1958 (“the Act”);
2)a failure to comply with s.425 of the Act;
3)the decision was affected by bias and the Tribunal’s decision was unfair.
The particulars of those claims are that, first, that the Tribunal failed to give to the applicant particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review, failed to ensure that the applicant understood why it was relevant and failed to give her an opportunity to comment on it. The applicant repeats that claim in an outline of submissions filed on 14th June 2007.
The fact is that the Tribunal's findings went to the credibility of the applicant's evidence. This was based on the applicant's oral testimony at the Tribunal hearing. Counsel for the first respondent Minister, Mr Mitchell, submits that the findings made were open to the Tribunal on the evidence before it and were rationally based and refers to a number of decisions including Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547 at [558]-[559] and Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67], Attorney-General of New South Wales v Quin (1990) 170 CLR 1 at [35]-[37].
The evidence of the applicant to the Tribunal is not a matter to which s.424A(1) of the Act applies. It comes within the exception of s.424A(3)(b) of the Act. In any event, as Counsel for the respondent submits, to the extent that the Tribunal's credibility findings were based on the applicant's demeanour it was permissible for the Tribunal to do so and I am referred to Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 at [34].
In my view, there is no breach of s.424A(1) of the Act as the Tribunal's decision was essentially based on its rejection of the applicant's account on credibility grounds and this was material that came directly from the applicant to the Tribunal at the hearing. Ground 1 must fail.
The second ground alleges a breach of s.425 of the Act, and the applicant says:
Although I was invited to attend a hearing before the Tribunal, it has, in fact, failed to give me a chance to present arguments relating to the issues arising in relation to the decision under review. Therefore the Tribunal failed to comply with its obligations under s425 of the Act.
The answer to that is that the Tribunal invited the applicant to attend a hearing first of all on 11th October 2006 by means of a letter which was in fact sent to the applicant's residential address rather than the postal address that she gave on her application. When that error was discovered, the applicant was invited to a later hearing on
20th November by a letter addressed to the address for service of correspondence that she gave in her application. Nevertheless, the first letter inviting the applicant to attend a hearing is a letter that does comply with the Act, as it gave the applicant notice of the first hearing within the prescribed time and it was forwarded to the applicant at the last residential address provided to the Tribunal by the applicant in connection with the review. As such, it complies with s.441A(4)(c)(ii) of the Act. The applicant received that letter and in fact attended the hearing at the appointed time and was given the option of electing to take the later hearing date of 20th November 2006. The Tribunal records the applicant elected to take the hearing date on the day that she appeared and in fact a hearing took place where the applicant gave oral evidence and was asked questions by the Tribunal. There is no error, certainly no jurisdictional error in that course.
There is certainly no evidence that shows that the applicant was not given an opportunity to present a case before the Tribunal when she appeared. There is no evidence that the issues were not put to her and in my view there is no error of the type set out in SZBEL v Minister for Immigration & Multicultural Affairs (2006) 231 ALR 592. The applicant's case was rejected by the Tribunal on the basis of credibility. The delegate's decision, which is set out at pages 27 to 35 of the Court Book, makes it clear that the delegate was not satisfied that the applicant had made out a credible case. There is nothing that indicates that the issue of the credibility of the applicant's claims, which was the reason why the Tribunal did not grant her application, was not thoroughly discussed with the applicant at the hearing. In my view, there is no basis for the claim that the Tribunal failed to comply with its obligations under s.425 of the Act, and that ground fails.
The applicant's third claim is that the Tribunal was in some way biased. It is well established that an allegation of bias is a serious allegation and must be strictly alleged and proved. The applicant says this:
The Tribunal gave too much weight to my performance at the Tribunal's hearing but completely ignored the fact that I was in a particularly vulnerable situation; and I have experienced serious difficulties, technical and psychological, in discussing my case with an alien official in a language not my own. Especially because of my experiences and sufferings in the past I was in fear of the authorities in my own country, must still feel apprehensive vis-a-vis any authority. I might therefore be afraid to speak freely and give a full and accurate account of my case. Therefore it is definitely unfair that the Tribunal has completely ignored my written materials but simply made a decision relied on the Tribunal's hearing.
The Tribunal in conducting the hearing certainly relied on the applicant's oral testimony. As I have said before, the Tribunal is entitled to consider the demeanour of an applicant (see Re Refugee Review Tribunal; Ex Parte H (2001) 75 ALJR 982 at [34]). The Tribunal had already made it clear in its invitation to attend a hearing, the first one of which was sent on 28th August 2006, that the Tribunal had considered the material before it in relation to the applicant's application but was unable to make a decision in her favour on that information alone. The applicant, on attending the Tribunal, did not provide any additional documentary evidence other than a copy of her passport. The applicant was therefore on notice that the Tribunal did not consider the written material to be sufficient to allow it to make a decision in her favour. After all, that is why the Tribunal invited the applicant to attend a hearing. It was on the basis of the applicant's evidence to the Tribunal that the Tribunal was not satisfied as to the credibility of her case. As the Counsel for the respondent submits, the Tribunal was not required to provide the applicant with a running commentary on her testimony.
There is no evidence of bias. There is no transcript submitted that shows that the Tribunal member acted in a biased and unfair way at the hearing and it is well established that it is a very exceptional case where bias will be apparent on the face of the Tribunal decision (see SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 at [16] and SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [44]).
There is no evidence to show that the Tribunal was in any way aware that the applicant was in any greater state of nervousness or psychological vulnerability than other applicants and it is not uncommon for applicants seeking a protection visa to be in awe or even in fear of persons in authority. After all, a fear of people in authority in their home country is often a reason why parties become refugees. True it is that the applicant does not speak English but an interpreter in the Mandarin language was provided. The applicant was not represented by a migration agent at the hearing and it is accepted that unrepresented applicants are at a disadvantage, whether at a hearing before the Tribunal or in an application for judicial review before the Court. None of that establishes any bias on the part of a Tribunal.
As to the Tribunal basing its decision on the applicant's oral evidence rather than on the written material, the weight given to evidence is entirely a matter for the Tribunal and the Tribunal had already put the applicant on notice that the written material was not sufficient to enable the applicant’s case to be successful. The Tribunal had made that quite clear and a finding that the applicant’s oral evidence was not credible does not establish any bias on the part of the Tribunal. That ground must fail.
I am aware that the applicant is not legally represented in these proceedings today. She told the Court that she had been beaten and was not able to walk properly because of injuries that she had sustained when being beaten by the police. She offered to show those injuries to the Court but it is not the function of the Court to second-guess the Tribunal on matters of fact or conclusions to be drawn from factual evidence (see SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 at [3]). The role of the Federal Magistrates Court is to correct the Tribunal if jurisdictional error is revealed.
My independent reading of the Tribunal decision and supporting material does not disclose any jurisdictional error. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by s.474(2) of the Act. As such, the decision is not subject to declaration or orders in the nature of certiorari, mandamus or prohibition. It follows that the application must be dismissed.
I note that an order has already been made changing the title of the first respondent Minister to Minister for Immigration & Citizenship.
There is an application for costs on behalf of the first respondent Minister in the sum of $4,900.00 including Counsel’s fees.
The applicant has been unsuccessful in her claim and in my view there are grounds for making an order for costs in favour of the Minister. The amount of $4,900.00, which is sought is to my mind an appropriate figure within the scale envisaged by the Federal Magistrates Court Rules 2001. Against this, the applicant says that she has no money. She has been unable to get work. She is hampered by her inability to speak English and also by the fact that she walks with a limp due to injuries that she suffered in China. I will take those matters into account in assessing time to pay.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 16 July 2007
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