SZKKN v Minister for Immigration
[2007] FMCA 1623
•5 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKKN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1623 |
| MIGRATION – Review of decision of Refugee Review Tribunal – Tribunal’s assessment of evidence not “information” for the purposes of s.424A of the Act – issue of applicant’s credibility raised with the applicant at the hearing – no breach of s.425 of the Act – no bias and no apprehended bias on the part of the Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958, s.424A, 425 |
| VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at 428 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CRL 152 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 157 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834 SZIAY v Minister for Immigration and Multicultural Affairs [2006] FMCA 1680 |
| Applicant: | SZKKN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1033 of 2007 |
| Judgment of: | Nicholls FM |
| Hearing date: | 25 September 2007 |
| Date of Last Submission: | 25 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mr J D Smith |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 28 March 2007 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1033 of 2007
| SZKKN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made under the Migration Act 1958 (“the Act”) as amended, filed in this Court on 28 March 2007 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 15 February 2007 and notified to the applicant by letter dated 1 March 2007, which affirmed the decision of a delegate of the respondent Minister to refuse to grant a protection visa to the applicant.
Background
The applicant is a national of the People’s Republic of China who arrived in Australia on 15 September 2006 and applied for a protection visa on 13 October 2006 (reproduced in the Court Book (“CB”), filed by the first respondent, at CB 1 to CB 47 with annexures). On 4 November 2006, a delegate of the respondent Minister refused to grant a protection visa to the applicant. On 30 November 2006, the applicant applied to the Tribunal for review of that decision.
The applicant’s claims to protection
The applicant’s claims to protection are set out in her statutory declaration dated 12 October 2006 annexed to her application for a protection visa (reproduced at CB 25 to CB 30). The applicant gave evidence to the Tribunal at a hearing on 15 January 2007. The Tribunal’s account of what occurred is set out in its decision record reproduced at CB 98.3 to CB 100.10. The applicant has not provided evidence, by way of transcript, to challenge the Tribunal’s account of what occurred.
The applicant’s claims to protection arise from what may be described as the applicant’s political activities in China, which involved her protesting against the treatment of her boyfriend, whom the applicant claims was detained by the PSB (Chinese security authorities) and sent to work on a construction site, but later died from a serious illness contracted whilst he was detained and set to work. The applicant claims that Chinese authorities regarded, and continue to regard, her as anti-government, and that she had been detained for a month by the PSB in May 2006 because she and her boyfriend’s mother had protested, and sought compensation for the boyfriend’s death. She claimed that she was mistreated and was required to report to the PSB on a regular basis after her release.
At the hearing, the applicant also claimed (for the first time) that following an incident at a market in August 2006, where she spoke up for a person selling vegetables, she was taken by guards to the PSB. Further, that in September 2006, police broke into her home, she was taken away and beaten and burned with cigarettes. She also claimed that she would be harmed on return to China (and delayed making these latter claims) because there are “spies in Australia”.
The Tribunal
The Tribunal’s findings are reproduced at CB 101.1 to CB 102.9. The Tribunal found that the applicant was not a witness of truth, and did not accept her claims for this reason (see in particular at CB 101.8). Further, the Tribunal found that the claims of the two instances of harm in August and September 2006 raised at the hearing for the first time were fabrications (CB 101.9 to CB 102.3). The Tribunal rejected as an “invention” the applicant’s claim that she would be harmed if she returned to China because of “spies in Australia” (CB 102.7). In all, therefore, the Tribunal was not satisfied that the applicant had a well founded fear of persecution for a Refugees Convention reason were she to return to China.
Application to the Court
The application filed on 28 March 2007 puts forward two grounds (with particulars):
“1. There was an error of law in the Tribunal’s decision constituting a jurisdictional error.
2. There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
Particulars
1. The Tribunal failed to comply with its obligations under s.424A(1) of the Act
1.1 In making a finding in relation to my credibility, the Tribunal has considered following pieces of information as a reason or part of reason:
The Tribunal asked the applicant if any thing happened to her after June 2006, when she claims she was released from gaol, and when she left to come to Australia in September 2006. She said that she was taken by guards to the PSB in August 2006 after an incident at a market and then on 10 September 2006 police broke into her house and took her away and tortured her. Including burning her with cigarettes. Her oral evidence to the Tribunal, when it asked her when she made these very serious claims for the first time, was that she had not made these claims before and she was making them for the first time before the Tribunal.
1.2 It is apparently not the case. In the Statutory Declaration attached to my protection application to the Department, I have stated that:
… I was released after my parents bribed those corruptive police in June 2006, but from then on, I was required to report to the PSB once a week.
My parents tried their best to arrange me to g to the overseas after I was released, because I was continually in troubles with the PSB and local officials …
1.3 I believe that the Tribunal must have already carefully read my claims mentioned above in the Statutory Declaration before the Tribunal’s hearing. Obviously, it was NOT the first time when I claimed my problem with the PSB after June 2006 to the Tribunal. As a matter of fact, my oral evidence at the Tribunal’s hearing should not be regarded as a new one; instead, it was the one that I had detailed my claims which had made previously to the Department.
1.4 Importantly, subject to s.424A(1) of the Act:
Section 424A Applicant must be given certain information
424A(1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
1.5 As I have mentioned above, the information mentioned in above Paragraph 1.1 is not the one according to s.424A(3):
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application;
(c) that is non-disclosable information.
1.6 Therefore, it must be a case that the Tribunal has failed to comply with its obligations under s.424A(1) of the Act, because the Tribunal, from the beginning to the end, the Tribunal:-
(a) failed to give to me, in the way that the Tribunal considers appropriate in the circumstance, particulars of any information that the Tribunal considers would be the reason, or a part for the reason, for affirming the decision that is under review; and
(b) failed to ensure, as far as is reasonably practicable, that I understand why it is relevant to the review; and
(c) failed to invite the applicant to comment on it.
2. The Tribunal failed to comply with her obligations under s.425(1) of the Act.
2.1 Subject to s.425(1) of the Act:
Section 425 Tribunal must invite applicant to appear
425(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
2.1 In other words, under the Act, I have two rights – firstly, to give my oral evidence; secondly, to present my arguments. However, as I have mentioned above, I did not have any genuine opportunity to give my oral evidence in support of my claims; and I did not have any genuine opportunity to present my arguments against the issues arsing in relation to the decision under review.
3. In summary, I have never ever agreed that my application has been assessed by the Tribunal fairly and carefully.”
[Errors in Original]
Hearing before the Court
At the hearing before the Court, the applicant appeared in person with the assistance of an interpreter in the Mandarin language. Mr J D Smith of Counsel appeared for the first respondent. I also have before me the applicant’s written submissions filed on 19 September 2007 and the first respondent’s written submissions filed on 17 September 2007.
At the hearing before the Court, the applicant submitted:
1)What she told the Tribunal was true and that it was unfair of the Tribunal to refuse her application. [This appears to relate to ground three in the application to the Court].
2)The Tribunal “severely breached” s.424A of the Act because it did not put its credibility concerns to her and relied on what she had said in her protection visa application and said she had raised certain matters before the Tribunal for the first time at the hearing. [This relates to ground one in the application to the Court].
3)That what the Tribunal said were claims raised for the first time at the hearing was only an expansion, in terms of further detail, of what she had said in the protection visa application. She had not mentioned this detail because of the “enormous pressure” following her escape from China. [This relates to the factual basis of the grounds in the application].
4)The Tribunal breached its obligations pursuant to s.425 of the Act. In its letter of invitation to the hearing (CB 73 to CB 74), the Tribunal specifically invited her to the hearing “to give oral evidence and arguments in support of your claims.” Yet when she gave this evidence the Tribunal did not tell her of its “suspicions.” She thought her “explanations” had been “accepted by the member”, she was therefore “misled” by the Tribunal which had “bent truth”. [This relates to ground two, and possibly ground three].
5)She wanted help from the Court. She was “upset” because the Tribunal had not accepted her claims. She had a miserable life, was pregnant and had been abandoned by the baby’s father (she used the term “suicidal”).
The applicant puts forward three grounds in her application and pressed in her submissions to the Court, and further, asserts an allegation of bias in written submissions which are said to arise from the same error made by the Tribunal.
The applicant complains that the Tribunal found that at the hearing she made claims that she had not previously made (CB 101.8 to CB 102.3):
“The Tribunal asked the applicant if any thing happened to her after June 2006, when she claims she was released from gaol, and when she left to come to Australia in September 2006. She said that she was taken by guards to the PSB in August 2006 after an incident at a market and then on 10 September 2006 police broke into her house and took her away and tortured her, including burning her with cigarettes. Her oral evidence to the Tribunal, when it asked her when she made these very serious claims for the first time, was that she had not made these claims before and she was making them for the first time before the Tribunal. Given the seriousness of these claims, in the Tribunal’s view if these claims were genuine the applicant would have made them before the Tribunal hearing. Her oral evidence tote h Tribunal was that she did not do so. The Tribunal does not accept that the applicant’s explanation for why she delayed making these claims until the Tribunal hearing, namely that she was scared because there are spies in Australia and she was afraid to make these claims, is plausible or reasonable. In the Tribunal’s view the applicant invented these claims to assist her application for protection. The Tribunal does not consider that the applicant is a reliable witness.” [Errors in Original]
The applicant submits that in her statutory declaration submitted to the first respondent’s Department (at the time of making her application for a protection visa) she stated as follows (at CB 29):
“(20) Especially, in May 2006, one year after my boy-friend was in troubles, I was arrested by Quanzhou PSB while I had a sit-in protest together with my boy-friend’s mother, asking for compensation for the death of my boy-friend. I was denounced to have anti-government sit-in protest; and I was detained for one month, and was put together with some female criminals in the cell, where the police instructed those female criminals to mistreat me. I was released after my parents bribed those corruptive police in June 2006, but from then on, I was required to report to the PSB once a week.” [Errors in Original]
Any plain reading of the relevant material reveals that the factual basis for the applicant’s complaint now cannot be made out. The only report of what occurred at the Tribunal hearing shows that the applicant told the Tribunal that she was taken by guards to the PSB in August 2006 after she spoke up for a peasant selling vegetables in the market, that in September 2006 the police broke into her house, took her away, and tortured her and burned her with cigarettes. None of this can be said to have been included in her statutory declaration which simply states that after June 2006 she was required to report to the PSB every week. As Mr Smith submits, her statements in the statutory declaration did not contain, even by inference, the claims later made at the hearing.
I do not agree with the applicant’s submission that she was merely adding detail to a claim already made. Even at its broadest, what the applicant set out in her statutory declaration (at paragraph (20)) was that she had been arrested in May 2006 by the PSB and that she was “continually in troubles with the PSB” (see paragraph (21)). There is no specific mention of any incident in August or September 2006.
At paragraph (21) of her statutory declaration, the applicant states:
“(21) My parents tried their best to arrange me to go to the overseas after I was released, because I was continuously in troubles with the PSB and local officials. However, owing to my bad records with the PSB, I could not get my own passport; and thus I had to leave the country with a passport not in my own name.”
I did consider whether the references to “continually in troubles with PSB” could be a general assertion to which the applicant’s claim to have merely provided subsequent detail at the hearing could attach. In context however, when read with what immediately precedes it in paragraph (20), this reference relates to the time prior to, and up to, her release in June 2006. Paragraph (21) is the explanation for her parents’ attempts to arrange her departure from China “after I was released.” The reason given (relevant to that time) was because she was “continually troubles.” This is not stated to relate to the period after June 2006 as the continuation of her “troubles” was the motivation for her parents actions “after her release.”
But even if this is not the case, the Tribunal’s finding that she had raised the incidents of August and September 2006 for the first time at the hearing still holds.
First, given the level of detail provided in the declaration about incidents and events prior to June 2006, it was open to the Tribunal to note that these incidents were not referred to at a time earlier than at the hearing.
Second, even if the applicant’s written statement that she had “troubles” was meant to encompass the months after June 2006 to refer to something more than reporting to the PSB once a week, then clearly the Tribunal’s relevant finding was not that she had raised problems with the PSB for the first time at the hearing, but that the “very serious” (CB 102.1) incidents were raised for the first time in circumstances where the applicant responded to the Tribunal’s question as to whether anything happened to her after June 2006. It was open to the Tribunal to reject the applicant’s explanation that no mention was made earlier of these incidents because she was “scared” as there were spies in Australia.
Third, the applicant told the Tribunal that she raised these matters for the first time at the hearing and had not raised them before. The applicant does not challenge the Tribunal’s report that this is what she said to it.
In all therefore, the factual basis of the applicant’s complaint is not made out.
Ground One – Failure to comply with s.424A of the Act
The applicant asserts that the Tribunal failed to comply with s.424A of the Migration Act 1958 (“the Act”). Even if the applicant could establish the factual basis for her complaint as she asserts (which she does not), I cannot see any breach of s.424A of the Act. The Tribunal’s finding in relation to the failure to mention earlier the two incidents said to have occurred after June 2006, was the Tribunal’s assessment of the evidence before it, and was not “information” for the purposes of s.424A(1) of the Act. See VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471, per Finn and Stone JJ at 477 ([24]) (citing Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [54], Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at 428) (cited with approval in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]):
“the word [information] does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.”
Further, as Mr Smith submits the applicant herself told the Tribunal that she had not made the claims before (s.424A(3)(b) of the Act). I also note that the applicant is silent now on the Tribunal’s report that she told it that she had not told anyone about these two matters previously (CB 100.2 to CB 100.4).
The allegation that the Tribunal failed to fairly and carefully assess the claims appears (by way of the written submissions) to be an assertion that the Tribunal did not make a genuine attempt to exercise its jurisdiction and relies on SZIAY v Minister for Immigration and Multicultural Affairs [2006] FMCA 1680 (per Smith FM) to say that the Tribunal made a perverse and illogical finding from her evidence. As set out above, the factual basis for the complaint is not made out. Further, even to the extent that illogicality is available to the applicant as a ground for review, the Tribunal’s reasoning was not flawed in this respect. These complaints, in all, therefore are not made out.
Ground Two – Breach of s.425 of the Act
The applicant complains that it was unfair of the Tribunal to ask her to a hearing to present further evidence and arguments, which she did, but then her evidence was unfairly represented as a new claim. I agree with Mr Smith that this was not a case of an applicant providing further details of a claim, but a case of the applicant raising new claims. That she had to report to the PSB weekly cannot be said to include claims that she had been taken by guards to the PSB after a dispute in a market, or that she had been removed from her house, taken away and tortured. This aspect of the complaint also does not succeed.
The applicant’s submission that the Tribunal breached its obligations pursuant to s.425 of the Act because the Tribunal did not tell her of its “suspicions” about her evidence, and that she was “misled” at the hearing because she thought the Tribunal accepted her explanations, is not made out.
The Tribunal found against the applicant because it found that she was not a “witness of truth” (CB 101.8). On the only account of what occurred at the hearing before the Court now (the Tribunal’s account), the Tribunal told the applicant at the hearing that her credibility was an issue for its consideration.
At CB 99.10:
“The Tribunal … explained that one of the things the Tribunal must decide is whether she is telling the truth about her claims.”
After hearing her evidence about the two claimed incidents in August and September 2006, the Tribunal noted (at CB 100.6):
“The Tribunal told the applicant that the fact that she has not made these very serious claims before causes it to doubt that she is telling it the truth. The applicant said that it is all true.”
The applicant’s credibility was the determinative issue in the Tribunal’s reasons for affirming the decision under review. The Tribunal raised this with the applicant at the hearing such that the applicant cannot say that there was any failure to accord procedural fairness on the part of the Tribunal (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152). The applicant has not put any evidence before the Court to challenge the Tribunal’s account of what occurred at the hearing. On what is before the Court, the applicant’s complaint that she had thought the Tribunal had accepted her explanations is not made out.
Ground Three – Bias and apprehended bias on the part of the Tribunal
The applicant asserts apprehended bias, and probably bias, on the part of the Tribunal. To the extent that this is also based on the same factual basis as the other grounds, this fails for the simple reason again that the factual basis is not made out. The applicant has not provided evidence to show bias on the part of the Tribunal in the sense that it did not bring an open mind to the proceedings, or that a well informed lay observer would reasonably apprehend bias on the part of the Tribunal (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361, Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431). I cannot see that the applicant’s assertion that the Tribunal did not consider her claims fairly and carefully can be made out. That the Tribunal did not believe the applicant’s claims does not on its own reveal bias on its part.
The Tribunal told the applicant at the hearing that the credibility of her claims was an issue in its consideration and further, that it doubted that she was telling the truth because she raised new matters for the first time at the hearing. I cannot see that this was a position to which the Tribunal was conclusively predisposed before the hearing as, on the facts, the issue of the new matters arose at the hearing itself. This ground also does not succeed.
Assistance from the Court
The applicant asked the Court for “help” in light of a number of personal factors that have arisen since her arrival in Australia. Even accepting the applicant’s claims as put, they do not reveal error in the Tribunal’s decision and do not assist the applicant in this regard. However, given the nature of some of what the applicant said, those acting for the Minister, and those persons in the Minister’s Department or his agents who have dealing with the applicant, should exercise the appropriate caution.
Conclusion
As to the application before the Court, I cannot discern jurisdictional error arising from the application, the applicant’s written submissions or her oral submissions to the Court or otherwise. Accordingly, this application is dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 5 October 2007
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