SZKMX v Minister for Immigration
[2008] FMCA 301
•12 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKMX v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 301 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal was biased – whether Refugee Review Tribunal acted in good faith – whether the Refugee Review Tribunal conducted a fair hearing in accordance with s.425 of the Migration Act 1958 (Cth) – whether the Tribunal breached s.424A(1) of the Migration Act 1958 (Cth). |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 424A(1); 424A(3)(b); 425; 474; pt.8 div.2 |
| Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507; Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; NADH of 2001 & Others v Minister for Immigration and Multicultural and Indigenous Affairs 214 ALR 264 NAAG of 2002 v Minister for Immigration Multicultural and Indigenous Affairs (2002) 195 ALR 207; [2002] FCA 713; NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449; SCAS v Minister for Immigration & Multicultural and Indigenous Affairs [2002] FCAFC 397 SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 136 ALR 481; 1996 185 CLR 259; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | SZKMX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3810 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 12 March 2008 |
| Date of last submission: | 12 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 12 March 2008 |
REPRESENTATION
| Applicant appeared in person with Mandarin interpreter |
| Counsel for the Respondent: | Ms S. Sirtes |
| Solicitors for the Respondent: | Ms K. Hooper, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3810 of 2007
| SZKMX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
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 31 October 2007 and handed down on 13 November 2007.
The Applicant claims to be from the People’s Republic of China (“China”) and previously an activist against the corruption in his workplace and, following the closure of his workplace due to bankruptcy, in the government in general (“the Applicant”).
The Applicant arrived in Australia on 2 August 2006 having departed legally from Shanghai Pudong International Airport on a passport issued in his own name and a visa issued on 18 July 2006.
On 29 August 2006, 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 Chinese authorities for his role as a leading activist in protests against corruption in his previous workplace, a textiles company. The Applicant claimed this activism continued over two years after his place of employment was declared bankrupt in 2003. It involved the organisation of protests both at his place of work prior to its closure and outside government buildings and the printing and distribution of propaganda material. The Applicant claimed he and another activist were arrested in November 2005 by the Public Security Bureau (“PSB”), held without trial and sent for ‘re-education’ to a labour camp without trial. The Applicant claimed he was beaten at the labour camp, forced to do hard manual labour and denied any legal assistance. The Applicant claimed he was released in March 2006 upon payment of a bribe by his family, on condition that he not appeal against his incarceration, not conduct any further protests and that he submit a “self-examine” report once a month to the PSB. The Applicant claimed that he obtained a passport with the help of a friend in his own name.
On 21 November 2006, 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”). The Delegate found the Applicant’s claims to be “general and unsubstantiated”.
On 22 December 2006, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal. On 20 February 2007, the Applicant provided to the Tribunal a Certificate of Release and two letters from his wife, dated 2 January 2007 and 16 January 2007, in support of the review application. On 5 March 2007, the Refugee Review Tribunal, previously constituted, affirmed the decision of the Delegate not to grant a protection visa.
On 12 April 2007 the Applicant filed an application in the Federal Magistrates Court for judicial review of the decision of the Refugee Review Tribunal dated 5 March 2007. On 31 July 2007, Federal Magistrate Cameron set aside the Refugee Review Tribunal’s decision and remitted the matter to the Refugee Review Tribunal for determination according to law.
On 31 October 2007, the Refugee Review Tribunal, differently constituted, (“the Tribunal”) affirmed the decision of the Delegate not to grant a protection visa. This is the decision presently under review.
On 12 December 2007, 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 decision
On 2 February 2007 the Applicant attended a hearing before the previously constituted Refugee Review Tribunal and gave oral evidence.
On 23 August 2007 the Tribunal invited the Applicant to attend a hearing on 18 October 2007. The Applicant attended that hearing and gave oral evidence.
The decision of the Tribunal is accurately summarised by the counsel for the First Respondent in her written submissions as follows:
“8. The Tribunal:
(a) Accepted that the applicant was a citizen of China and that he is who he claims to be (CB 131.6).
(b) Found that the applicant had not had difficulties obtaining a passport in his own name (CB 131.7).
(c) Accepted that the factory in which the applicant worked closed down in 2003 but did not accept that the applicant had left China because of fear of authorities consequent on his having protested the closure (CB 131.9).
(d) Did not accept the applicant’s wife and children would suffer harm in China because of their association with him, and found the applicant not to be a witness of truth (CB 132.1).
(e) Noted the inconsistency of the applicant’s claim to have feared the authorities but to have remained at the same address (being his address of 20 years), up until the time of his departure, and the fact that this wife and daughter still lived there (CB 132.2).
(f) Did not accept the applicant’s claims to have been detained, finding them to be inconsistent with his evidence to have resided at home, obtained a passport in his own name and to have been casually employed (CB 132.7).
(g) Rejected the document which purported to be a Certificate of Release particularly as the applicant had not produced it to the first Tribunal in support of the same claim. It rejected, as implausible, that he would have forgotten he had such a document at the time of the first hearing (CB 132.9).
(h) Did not find the content of the letters written by the applicant’s wife to be reliable evidence of the facts that were purported, on the basis that she was an interested witness (CB 133.2 to 133.5).
(i) Considered the applicant to have invented his detention claims to assist his protection visa application (CB 133.5).
(j) Found there was no plausible evidence before it that the appellant had, or would suffer persecution in China because of his political opinion (imputed or actual), his membership of a particular social group, or for any other Convention reason (CB 133.7).”
The proceeding before this Court
The Applicant was unrepresented before this Court although had the assistance of a Mandarin interpreter.
The Applicant confirmed that he relied on the grounds identified in the application filed on 12 December 2007.
The grounds of the application are expressed to be as follows:
“- There was an error of law in the Tribunal’s decision constituting a jurisdictional error
- There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
Particulars:
1. Frankly speaking, I do not believe that Ms. Christine Long, the Presiding Member of the Tribunal (“the Presiding Member”), is willing to assess my claims, properly and fairly; or has, carefully and thoroughly, considered my application.
a. The Presiding Member arranged a hearing for me as a mere formality, or did it perfunctorily. During the Tribunal hearing, I never thought that the Presiding Member was willing to, or genuinely intended to, provide me a fair chance to present my oral evidences and to give my arguments.
b. I strongly believe that the Presiding Member has already made his decision before the Tribunal’s hearing, and thus the Tribunal’s hearing was just for the purpose to go through the motions.
2. Based on the evidence that I have mentioned above, I do not think that the Presiding Member has, genuinely and honestly, complied with the obligations under s.425 of the Act, because:-
a. I have, in fact, been denied the right to present my oral evidences in support of my application fairly; and
b. I have, in fact, been denied the rights to give my argument against the issue arising from the Tribunal in relation to my review application.
3. The Presiding Member’s decision has included a reasonable apprehension of bias.
a. It is definitely unfair that the Presiding Member rejected my claims almost for only one reason – holding a passport in my own name;
b. The President(sic) Member rejected the important legal document solely on one ground – the detention without legal procedure (actually, in China, it is very much not unusual that the Public Security Bureau, or even the court, issued some legal documents to the people, who have been targeted by them, without any legal procedures); and
c. The President(sic) Member rejected my wife’s letter simply based on its unwarranted assumption.
4. The Tribunal failed to comply with its obligations under s.424A of the Act.
a. The Tribunal has regarded some of information, for example, the information regarding so-called “inconsistencies” (I have never ever accepted that my evidences are inconsistent), as the reason or part of the reason in its decision. However, the Presiding Member failed to give me particular of the information, which it has considered as a reason or part of the reason, in making its finding; and the Presiding Member failed to ensure me to understand it will be in relation to my review; and the President(sic) Member failed to invite me to comment on it.
5. In summary, I have never ever agreed that my application has been assessed by the Tribunal fairly and carefully.”
The Applicant was invited to make submissions in support of the grounds and in support of his application generally. The Applicant made no meaningful submission. Rather, the Applicant’s complaints were in the nature of a disagreement with the findings of the Tribunal.
The Applicant said he did not understand why the Tribunal found that being able to leave China on a passport issued in his own name led the Tribunal to find that he was not a refugee. The Court explained to the Applicant that the only issue before this Court is whether or not the decision of the Tribunal is affected by a legal mistake that goes to its jurisdiction. I explained to the Applicant that, without more, the fact that he may not have understood the reasons of the Tribunal or that he disagreed with them were not legal mistakes on the part of the Tribunal going to its jurisdiction.
The Applicant also submitted that the Tribunal member had made its decision prior to the hearing. The Court explained to the Applicant that allegations that allegations of bias and bad faith generally require evidence. Despite being given leave to file evidence, including a transcript of the hearing, in support of his application, the Applicant had not done so.
The Applicant was invited to identify parts of the Tribunal decision which he wished to allege demonstrated lack of good faith and bias on the part of the Tribunal member. The Applicant responded that the Tribunal could have called his wife and investigated the assertions in her letters of support rather than rejecting them. However, there is no obligation on the Tribunal to make such investigations. Nor, was there any request by the Applicant that is wife be called as a witness.
Bias, bad faith and unfair proceeding
Paragraphs 1, 2 and 3 of the application essentially allege that the Tribunal member approached her task not in good faith, with bias and not in compliance with the Tribunal’s obligations of fairness.
All those allegations are met by the same answer. The allegations are serious and are not supported by evidence or oral submissions.
Allegations of bias and lack of good faith must be distinctly made and clearly proved (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507;). Rarely will bias on the part of the Tribunal be apparent from the written reasons only (SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668).
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than open with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 & Others v Minister for Immigration and Multicultural and Indigenous Affairs 214 ALR 264 at [115])”.
Nor does a fair reading of the Tribunal’s decision disclose a lack of an honest or a genuine attempt by the Tribunal to make a decision, including in the conduct of its review (NAAG of 2002 v Minister for Immigration Multicultural and Indigenous Affairs (2002) 195 ALR 207; [2002] FCA 713 at [24]; NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 at [107]-[108]; SCAS v Minister for Immigration & Multicultural and Indigenous Affairs [2002] FCAFC 397 at [19]).
In relation to the allegation that the Tribunal breached s.425 of the Act in that it did not conduct a fair hearing, the Tribunal invited the Applicant to a second hearing.
In relation to the hearing, a fair reading of the Tribunal’s decision discloses that the Tribunal accurately summarised the claims made by the Applicant in his statutory declaration provided in support of his protection visa application.
The Tribunal had regard to documents provided to the Tribunal by the Applicant in support of his review application: those being a Certificate of Release and two letters from his wife. Ultimately, the Tribunal gave those documents little weight.
In relation to the Certificate of Release, the Tribunal did not accept the Applicant’s explanation as to why he did not provide that document prior to lodging his review application. The Tribunal noted that it put to the Applicant its concerns about this document and noted his responses. In particular, the Tribunal found that it was not plausible that the Applicant would forget that he had such a document to support his case or realise its importance. That finding was open to the Tribunal on the evidence and material before it and for which it gave reasons.
In relation to the Applicant’s wife’s letters of support, the Tribunal found they were not reliable evidence of the facts asserted therein because the Applicant’s wife was not impartial and was interested in the outcome of the Applicant’s application for protection. The Tribunal also noted that some of the matters asserted in the letters were not consistent with the Applicant’s own evidence. The finding made by the Tribunal that the wife’s letters are not reliable evidence of the facts asserted therein was open to the Tribunal on the evidence and material before it and for which it gave reasons.
A fair reading of the Tribunal’s decision makes clear that the Tribunal explored with the Applicant at the hearing various aspects of his evidence that caused it concern and noted his responses.
The Tribunal also had regard to independent country information that disclosed that if adverse records were held about a person indicating that he was of interest to authorities in China then checks by the PSB would have revealed those records and it would be difficult for a person to obtain a passport in his own name. Based on that information, the Tribunal did not accept that the Applicant was of interest to the authorities in China in circumstances where he was able to obtain a passport in his own name in October 2004 and left China without difficulty using that passport. That finding was open to the Tribunal on the evidence and material before it and for which it provided reasons.
It is a matter for the Tribunal the weight that it gives to evidence (Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [197]).
“In the end, the criticisms made by the applicant of the Tribunal's reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say.”
The Tribunal rejected the Applicant’s claims of detention and imprisonment at any time and found that the Applicant had “invented his claims about being detained in China, released on bail, questioned by/of interest to the PSB to assist his application for protection”.
The Tribunal found there was no plausible evidence before it that the Applicant had suffered past harm or that the Applicant would suffer serious harm in the reasonably foreseeable future in China for any Convention-related reason.
A fair reading of the Tribunal’s decision makes clear that the findings of fact made by the Tribunal were open to it on the evidence and material before it and for which it gave reasons. The Tribunal applied the correct law to the facts as it found them to be in reaching its conclusion that the Applicant did not have a well-founded fear of persecution for a Convention-related reason.
Otherwise, paragraphs 1, 2 and 3 are no more than a disagreement with the findings of the Tribunal and thereby inviting merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 136 ALR 481 at 491; 1996 185 CLR 259 at 272; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]).
A fair reading of the Tribunal’s decision does not suggest that the Applicant was denied any opportunity to present his oral evidence in support of his application fairly; nor was he denied the right to present arguments in support of his review application.
Accordingly, paragraphs 1, 2 and 3 do not disclose any jurisdictional error.
Paragraph 4 alleges a failure by the Tribunal to comply with s.424A of the Act.
The particulars given in support of that allegation identify the relevant information as “inconsistencies”. The inconsistencies found by the Tribunal to exist were in respect of information given to the Tribunal by the Applicant for the purposes of his review. Such information is specifically excluded from the obligations of s.424A(1) by reason of s.424A(3)(b) of the Act. Otherwise, the Tribunal’s thought processes do not enliven the obligations of s.424A(1) of the Act.
Accordingly, paragraph 4 does not disclose any jurisdictional error.
A fair reading of the Tribunal’s decision makes clear that the Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review.
Conclusion
A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at two hearings; had regard to all material provided in support; identified independent country information to which it had regard; made findings based on the evidence and material before it.
As stated above in these Reasons, the findings of fact made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal applied the correct law to those findings and made conclusions based on the findings made by it on the evidence and material before it.
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 is dismissed with costs.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 12 March 2008
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