SZJXH v Minister for Immigration
[2007] FMCA 1020
•5 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJXH v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1020 |
| MIGRATION – Refugee – review of Refugee Review Tribunal decision – claimed political persecution – Tribunal found applicant’s evidence not credible – no bias – Tribunal applied s.91R correctly – Tribunal did not fail to consider or misunderstand claims of applicant – Tribunal did not fail to carry out its statutory duty – no s.424A error – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.91R, 424A, 424A(3)(b), 424, 425, 424B |
| Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 SBBS V Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 VFAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 131 FCR 102 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 WABC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 155 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Kopalapillai v Minister for Immigration and Multicultural and Indigenous Affairs (1998) 86 FCR 547 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264 Minister for Immigration and Multicultural and Indigenous Affairs v Wu Shan Liang (1996) 185 CLR 259 SZEPZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 107 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 |
| Applicant: | SZJXH |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3853 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 5 June 2007 |
| Date of Last Submission: | 29 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 June 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mr. J. Mitchell |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The reference to the first respondent be amended to read “the Minister for Immigration and Citizenship”.
The Migration Review Tribunal to be removed as the second respondent.
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3853 of 2006
| SZJXH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore
(Revised from Transcript)
I have before me an application filed in this Court on 21 December 2006 and amended on 19 April 2007, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 26 October 2006 and handed down on 23 November 2006, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 19 December 2004. His application for a protection visa made on 27 January 2005 is reproduced in the Court Book (“CB”) (at CB 1 to CB 26). Following refusal of this application (CB 31 to CB 43), the applicant sought review by the Tribunal on
4 April 2005 (CB 44 to CB 48). On 14 July 2005, the applicant gave evidence before (a differently constituted) Tribunal. The Tribunal handed down a decision on 4 August 2005. That decision was quashed by consent before this Court on 31 May 2006, and the matter was remitted for reconsideration. Following reconstitution, the Tribunal held a further hearing with the applicant on 31 August 2006. It is the decision of this differently constituted Tribunal which is currently before the Court.
The applicant’s claims before the Tribunal were that he was employed in China as a supervisor in a factory, which processed canned eels, predominately for the Japanese market. In the second half of 2003, following an inspection of the factory, products being processed in the factory were found to contain a high level of bacteria. After being spoken to by the inspectors, the applicant revealed that some of the contents were not up to standard and that the machinery used in the factory was outdated. In May 2004, the applicant was taken away by inspectors and the police, and was accused of putting contaminants in the products. He claimed to have been detained for about half a year and subjected to “physical and mental persecution” (see the applicant’s statement attached to the application for review, reproduced at CB 48). He was ultimately released after the payment of money by his family. He then returned to the factory, quarrelled with factory management and was dismissed from his work. He was told that he would be reported for his anti-government remarks. He was unsuccessful in seeking other employment and obtained a visa to come to Australia to escape further persecution. His claims were that, following his departure, officials visited his home, looking for him, and that he feared that he would be seen as being “anti-government” if he were to return.
The Tribunal’s “Findings and Reasons” are set out in its decision record reproduced out at CB 100.5 to CB 103.1. The Tribunal formed the view that the applicant lacked credibility, and that his claims could not be accepted (CB 101.6). The Tribunal’s reasons for this were:
(1)His evidence before it was “internally inconsistent and unconvincing” (CB 101.6).
(2)It was inconsistent with evidence that he had given before the earlier constituted Tribunal (CB 101.6).
(3)His evidence relating to his detention, procedures and formalities during that detention, and to claims of charges laid against him, led it to conclude that he was not speaking from his “personal experience” and “was not relaying events actually experienced by him” (CB 102.3).
(4)There were “internal inconsistencies and significant inconsistencies” with his evidence before the earlier constituted Tribunal (CB 102.4).
(5)It did not accept his explanation for these inconsistencies (CB 102.4).
(6)Based on evidence that he gave before it, the Tribunal rejected his claim that he would be imputed with any anti-government sentiment “for reasons of activities undertaken in Australia” (CB 102.8).
In all, the Tribunal found that there was “no credible evidence” that the applicant had ever suffered harm in China for reason of anti-government opinion attributed to him or for his actual or imputed political opinion, and was not satisfied therefore that the applicant had a well-founded fear of persecution for a Convention reason (CB 102.10 to CB 103.1).
In addition to his original application of 21 December 2006, the applicant has also put before the Court an affidavit made on
4 December 2006, an amended application filed on 19 April 2007, and further amended application, which he sought to put before the Court. The further amended application, apart from one matter, appeared to press the same complaints made in the earlier documents (referred to collectively as “the applications”).
The applicant appeared before the Court and was unrepresented.
He was assisted by an interpreter in the Mandarin language.
Mr. Mitchell of Counsel appeared for the first respondent. I note I also have before me the respondent’s outline of submissions filed on
29 May 2007.
The applicant’s complaints as they arise from the applications put before the Court (and his affidavit) appear to be:
(1)The Tribunal was biased.
(2)It did not consider his application in accordance with s.91R of the Migration Act 1958 (“the Act”).
(3)It failed in its obligation, pursuant to s.424A of the Act.
(4)It failed to consider, or misunderstood, his claims.
(5)It generally failed to carry out its statutory duty.
(6)Its s.424 letter did not conform with the requirements of s.424A of the Act.
Dealing with the last matter first (the s.424 matter), the applicant explained to the Court today, that his application was drafted with the assistance of a friend who did not appear to be legally qualified in Australia, but whom the applicant described as “knowing one or two things”. Beyond that, the applicant was unable to assist the Court further with the matters set out in his application in relation to this claimed “s.424 letter”. In any event, there is nothing in the material before the Court now to show that the Tribunal sent any such letter to the applicant pursuant to s.424 of the Act seeking any additional information.
Before the Court today, the applicant in submissions pressed his claim that the Tribunal failed to consider his claims and was biased. The applicant also appeared to raise an additional complaint that the Tribunal should have notified him of its reasons for refusing his application before it actually made its decision.
Addressing each of these claims in turn, the applicant appears to allege bias on the part of the Tribunal because he asserts it misunderstood his claims and failed to consider his application, in accordance with s.91R of the Act. In relation to bias, it is well established, (see Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 (“Jia”)) this requires a state of mind by, relevantly, the Tribunal during the course of conducting the review that is committed to a conclusion already formed, such that the mind of the Tribunal is incapable of alteration, no matter what the evidence or arguments that may be put before it (see also Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 at [10] and Jia at [72]). The critical issue is whether the mind of the decision maker, that is, the mind of the Tribunal, is open to persuasion. The applicant has put no evidence whatsoever before the Court to support his claim, other than the Tribunal’s decision record. As was set out by Kenny J. in VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 at [21], it is rare that a case of actual bias can be made out with reference only to the reasons for the Tribunal’s decision, and that what would be required would be reference to these reasons as well as the attitude and conduct of the Tribunal, for example, at a hearing.
As Mr. Mitchell submitted, it should not be inferred in the absence of a transcript of the hearing that the Tribunal was biased in the manner in which the hearing was conducted (SBBS V Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [43]) and as was said in VFAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 131 FCR 102 (“VFAB”) at [21]). I also accept Mr. Mitchell’s submissions that no inference of bias or indeed pre-judgment can be drawn from the mere fact of an adverse credibility finding (VFAB at [21], SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] and WABC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 155 at [3]).
Plainly, in the case before me, the Tribunal was not satisfied as to the applicant’s credit. What the Tribunal’s decision record reveals is that the Tribunal assessed the applicant’s answers to questions and found his answers to be internally inconsistent, unconvincing, and inconsistent as between the two accounts he gave at the two hearings. These conclusions were factual conclusions that were open to the Tribunal for the reasons that it plainly set out in its decision record. These were findings of fact for the Tribunal as the decision maker “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J. at [67]).
The Tribunal’s credibility findings were open to it for the reasons that it gave. No error, therefore, is demonstrated as a result (see Kopalapillai v Minister for Immigration and Multicultural and Indigenous Affairs (1998) 86 FCR 547 at 558-559 and W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64] - [69]).
On what is before me, the inferences that were drawn by the Tribunal were plainly open to it on the evidence before it, and were not, as
Mr. Mitchell submits, perverse, in the sense of lacking probity of material in support of these inferences (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 368 and also NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264 at [115]). As has been often said, this Court cannot review the merits of the Tribunal’s decision (Minister for Immigration and Multicultural and Indigenous Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272] (“Wu Shan Liang”)). In all therefore, the complaint of bias is not made out.Further, in relation to the complaint that the application was not considered in accordance with s.91R of the Act, the applicant has provided no particularity whatsoever to support this complaint. While s.91R(2) of the Act sets out examples of what may constitute “serious harm” for the purposes of the application of Article 1A(2) of the Refugees Convention to the Act, a plain reading of the Tribunal’s decision record reveals that it was well seized of the relevant question that it was required to answer in this regard (see generally the Tribunal’s setting out of the relevant law at CB 89 and CB 90, and in particular, reference to s.91R of the Act at CB 90.3).
But even with more particularity, the Tribunal answered the relevant question by finding that there was no credible evidence that the applicant had ever suffered harm “let alone serious harm” in China for reasons of an imputed or actual political opinion (CB 102.10).
With particular reference to s.91R(3) of the Act, which deals with a situation of conduct in Australia, the Tribunal is required to disregard any such conduct unless it is satisfied that the applicant engaged in such conduct other than for the purposes of strengthening refugee claims. In this regard, I note that at the hearing before the Tribunal the applicant did claim to have joined some anti-government organisations in Australia. He then appeared to resile from this claim and said he listened to anti-government remarks made by Falun Gong adherents. The Tribunal rejected the applicant's claim that he would be imputed with any anti-government sentiment. But it is plain that this was not a finding made pursuant to or in contemplation of s.91R(3) of the Act. The Tribunal's analysis did not reach that point. Simply, the Tribunal did not accept that listening to anti-government remarks only, and in circumstances where the applicant had said he had not joined any organisation, did not take part in any activity, or had not practised Falun Gong, would lead to his being imputed with anti-government sentiment. This was clearly open to the Tribunal to so find.
In all therefore, I cannot see that there is any assistance to the applicant arising out of his claim that the Tribunal did not consider his application in accordance with s.91R of the Act.
What in reality is left of the applicant’s complaint is that the applicant takes issue with the Tribunal’s adverse credibility finding (and as I have already found above, this was open to the Tribunal). In this regard also, the complaint that the Tribunal failed to consider his claims and failed to assess the chances of persecution, in reality, amounts to a request for impermissible merits review (Wu Shan Liang).
Turning to the applicant’s complaint concerning the Tribunal’s failure to meet its obligations, pursuant to s.424A(1) of the Act, on what is before me, this ground does not succeed. In the making of its decision, the Tribunal relied on information solely provided by the applicant himself, such that such information fell within the exception contained in s.424A(3)(b) of the Act from the requirements set out in s.424A(1) of the Act. With reference also to SZEPZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 107 at [39], (I note that the reference was also submitted in the Minister’s submissions), the fact that the applicant’s evidence was given before two differently constituted Tribunals does not mean that such information was not given for the same application for review, such that the information provided to the earlier constituted Tribunal also falls within s.424A(3)(b) of the Act.
As to the Tribunal’s appraisals of the applicant’s evidence, these were, as the Minister submits, factual matters and did not constitute information for the purposes of s.424A of the Act. That is, they were factual findings which formed the basis of the Tribunal’s appraisal of the information that had been provided by the applicant himself. In this regard, I accept the Minister’s reliance on authorities such as VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24] and WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [26]-[29].
In this regard also, I note the applicant’s complaint before the Court today that the Tribunal should have put to him for comment, its reasons for refusing his application before actually doing so.
I note, firstly, that this is an application to which s.422B of the Act applies, making the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule (absent bias) (Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 and SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62). In this context, the Tribunal's obligations in relation to the provision of information for comment are those contained, relevantly, in s.424A of the Act. As I have already stated, there is a distinction for the purposes of that section between information and the Tribunal's thought processes in terms of its appraisal of information.
I also note in a similar vain, submissions made by Mr. Mitchell on a matter not raised by the applicant but in relation to s.425 of the Act, and relevantly, what was said by the High Court SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63. That is, the Tribunal's obligation that determinative issues be put to an applicant at the hearing. Even in this context, I accept Mr. Mitchell's submissions that it cannot be inferred that determinative issues were not put to the applicant for comment. In fact, the summary of the accounts of the two Tribunal hearings which the applicant attended, which is the only evidence put before the Court now of what occurred on those two occasions at those hearings, reveals that the relevant matters, the determinative issues, were clearly raised with the applicant. As Mr. Mitchell submitted, the Tribunal's obligations pursuant to s.425 of the Act, relevantly, do not extend to providing the applicant with, as was put by Mr. Mitchell, a “running commentary” of his evidence, nor, remembering the provisions of s.424B of the Act, is there any other statutory obligation on the Tribunal to provide to the applicant a draft of its decision record for his comment before finalising its decision.
Beyond the reference to s.424A and s.91R of the Act, the applicant does not specify any further breach of its statutory duties. I note generally in this regard, that the applicant was invited to and appeared at two hearings. On the basis of the only evidence before the Court (that is, that contained in the Tribunal’s decision record), raised with the applicant the relevant and determining matters as they arose from his claims and evidence and gave him the opportunity to comment.
The Tribunal’s decision as to whether the applicant had a well-founded fear of persecution for a Convention reason turned on its assessment of the truth of his claims to have been persecuted in the past and the rejection of the applicant’s claimed activities in Australia. The mere fact that it did not accept his claims does not reveal any failure in relation to its statutory duties. This complaint also does not succeed.
In all, I cannot discern jurisdictional error in the Tribunal’s decision. This application is dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Dawnie Lam
Date: 3 July 2007
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