SZKOA v Minister for Immigration
[2008] FMCA 179
•25 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKOA v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 179 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant is a citizen of the People's Republic of China claiming fear of persecution for reasons of his political opinion – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.424A – whether Tribunal made its finding based on incorrect information – whether jurisdictional error – allegation of bias – no reviewable error. |
| Migration Act 1958 (Cth) s.424A |
| SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 followed SZJRH v Minister for Immigration & Anor [2007] FMCA 2037 referred to. |
| Applicant: | SZKOA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2968 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 14 February 2008 |
| Date of Last Submission: | 21 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 25 February 2008 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2968 of 2008
| SZKOA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant, who is a citizen of the People's Republic of China, asks the Court to review a decision of the Refugee Review Tribunal affirming the decision of a delegate of the Minister for Immigration and Citizenship not to grant him a Protection (Class XA) visa. The decision was signed on 3rd September 2007 and handed down the following day, 4th September 2007.
The Applicant claims that there was an error of law in the Tribunal's decision constituting jurisdictional error. He also claims that there was a procedural error in the Tribunal's decision constituting an absence of natural justice.
Background
The background to this matter is that the Applicant arrived in Australia on 25th June 2006. He applied for a Protection (Class XA) visa on
8th August 2006. He claimed to fear persecution in China for reason of his political opinion. He claimed that he was a tax collector with his local neighbourhood committee. He also claimed that local officials wished to receive compensation payments corruptly for the repossession of land. He claimed that he was offered a bribe to participate in the scheme but refused to participate.
He further claimed that he complained to the local authorities without any response in March 2005, and in April of that year organised a public meeting to protest. He claims that the police broke up the meeting and that he was detained by the PSB, the Public Security Bureau, for a week, beaten, and then sent to a psychiatric hospital for eight months. Subsequently he received a summons for organising an illegal meeting.
On his release he wrote petitions. He applied for a business visa to come to Australia and left legally on his own passport. After his arrival in Australia he claimed that the police came to his home in China seeking to arrest him.
The delegate of the Minister for Immigration & Citizenship refused the Applicant's application for a visa on 29th September 2006. The Applicant then sought a review of the delegate's decision and the Tribunal, differently constituted from the Tribunal whose decision is under review, affirmed the delegate's decision on 29th March 2007. The Applicant then sought judicial review of the Tribunal's decision from the Federal Magistrates Court.
On 21st June 2007 Nicholls FM made orders by consent to the effect that:
i)A writ of certiorari was to issue, quashing the Tribunal decision.
ii)A writ of mandamus was to issue, directing the Refugee Review Tribunal to consider the Applicant's application for review according to law.
Application to the Refugee Review Tribunal
The Tribunal wrote to the Applicant on 5th July 2007 advising him that his application for review had been remitted to the Tribunal from the Court.
On 11th July the Tribunal wrote to the Applicant care of his migration agent, who was his authorised recipient, inviting the Applicant to provide any documents or written arguments that he wished the Tribunal to consider, which he had not already provided to the Tribunal. Any documents, the letter said, should be provided as soon as possible and if not in English should be translated by a qualified translator.
The Tribunal wrote again to the Applicant's migration agent on 30th July 2007. That letter was headed: "Invitation to comment on information in writing." The letter asked the Applicant to comment on information that the Tribunal considered would be, subject to any comments that he might make, the reason or part of the reason for affirming a decision that was under review. The letter then set out several items of information and informed the Applicant why the information was relevant. The letter invited the Applicant to give comments in writing on the information.
On that same date, 30th July 2007, the Tribunal sent another letter to the Applicant inviting him to attend a hearing on 20th August 2007. The letter asked the Applicant to bring his passport and advised him that an interpreter in the Mandarin language would be available.
The Applicant's migration agent sent a facsimile message on 2nd August 2007 enclosing the Response to Hearing Invitation form signed by the Applicant. That form indicated the Applicant did wish to attend a hearing and would require an interpreter in the Mandarin language.
On 10th August the Applicant's migration agent forwarded a statutory declaration by the Applicant to the Tribunal. This statutory declaration contained the Applicant's comments to the letter of 30th July 2007 inviting him to comment on information. It is clear that the Tribunal's letter was intended to comply with requirements of s.424A of the Migration Act.
The Applicant attended the hearing on 20th August 2007. He brought with him his passport and the Tribunal copied it. He gave evidence with the assistance of an interpreter in the Mandarin language.
The Tribunal signed its decision on 3rd September and handed the decision down on 4th September 2007. A copy of the Tribunal decision record can be found at pages 131 through to 151 in the Court Book. In the decision record the Tribunal set out a detailed summary of the Applicant's claims and evidence, including a reference to the first Tribunal review, and it also set out matters arising from a current review. The decision record covered the s.424A letter to the Applicant and his statutory declaration in reply.
The Tribunal also set out in some detail a summary of the Applicant's evidence to the Tribunal. That summary is set out on pages 138 through to 146 of the Court Book. The Tribunal also considered Independent Country Information under the heading: "Evidence from other sources." That information related to the following topics:
·Corruption in the People's Republic of China.
·Exit procedures for people departing from China.
·Document fraud in China.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons are set out on pages 148 to 151 of the Court Book. The Tribunal noted that the Applicant had travelled to Australia on a valid Chinese passport and claimed to be a national of the People's Republic of China. On that evidence the Tribunal accepted that the Applicant is indeed a national of China, and assessed his claims against China as his country of nationality.
Unfortunately for the Applicant, the Tribunal formed a negative view of his credibility. The Tribunal had these overall comments to make:
The Tribunal found the applicant to be a witness who completely lacked credibility. The Tribunal found the applicant to be evasive and non-responsive. The applicant appears to have memorised his statement and to have difficulty answering questions relating to the issues not addressed in the statement. On many occasions the Tribunal had to repeat its questions several times to elicit a response from the applicant and often such responses failed to address the issues raised by the Tribunal.[1]
[1] See Court Book at page 148
The Tribunal then set out particular concerns that it had about the Applicant's evidence relating to its finding that the Applicant was a witness who lacked credibility. The Tribunal went on to find:
For these reasons, and the Tribunal's findings about the applicant's general lack of credibility, apparent from the applicant's evasiveness and non-responsiveness to Tribunal's questions, the Tribunal finds that the applicant has been untruthful in his claims to the Tribunal. The Tribunal rejects the applicant's claims. The Tribunal rejects that the applicant had been involved in the repossession of land and the payment of compensation and that he spoke against corruption. The Tribunal rejects the claim that the applicant referred the matter to the local authorities, either in March 2005 or in December 2005 to early 2006 or at all.[2]
[2] See Court Book at page 149
The Tribunal noted the Applicant provided medical evidence with respect to ailments that he claimed to have suffered in China, but noted that the evidence did not indicate the source of those ailments. The Tribunal found that the medical certificates did not support the Applicant's claims. The Tribunal also noted the fact that the Applicant had presented a number of certificates of honour, which attested to his character, but found that those documents did not show that he was employed by the neighbourhood committee as he claimed and did not consider those documents to be probative of his claimed employment.
The Tribunal also noted that the Applicant had provided a certificate of elected member of villagers committee and accepted that he may have been employed at the neighbourhood committee, but rejected the Applicant's claims arising from that employment.
After considering the Applicant's claims individually and on a cumulative basis, the Tribunal found that if the Applicant was to return to China at the time of the hearing or in the reasonably foreseeable future, there was no real chance that he would be persecuted for the reason that is political opinion, membership of a particular social group or for any other convention reason.
The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
The Applicant commenced proceedings in this Court by filing an application and an affidavit in support on 26th September 2007. In that application he seeks the following orders:
a)A declaration that the decision was invalid and contrary to law.
b)An order that the Tribunal decision be quashed or set aside.
c)An order that the application be remitted to a differently constituted Refugee Review Tribunal and be determined in accordance with law.
The Applicant claims jurisdictional error and procedural error constituting an absence of natural justice. The particulars of those claims concentrate on three subject areas.
Ground 1 – The Tribunal failed to comply with its obligation under s.424A
The Applicant complains that the Tribunal failed to comply with its obligations under sub-section 424A(1) of the Migration Act. He claimed that the Tribunal provided him with particulars of information in relation to his departure from China, and invited him to comment on it, but failed to consider that information in making its decision. He claims that the Tribunal used information that the Tribunal had never provided to him as the reason or part of the reason for affirming a decision under review. He gave examples such as information regarding laws or regulations in China, governing the repossession of land and the payment of the compensation, or information regarding inconsistencies of his evidence with Independent Country Information or inconsistencies of his evidence at two Tribunal hearings.
He claimed that the Tribunal failed to provide particulars of the information which it had genuinely considered, and failed to ensure that he understood that the information which it had used would be in relation to his review application. He claimed the Tribunal failed to invite him to comment on that information which it had considered as the reason or part of the reason for affirming the decision that was under review.
Ground 2 – The Tribunal made its finding based on incorrect information
The Applicant claimed the Tribunal made its finding based on incorrect information. He said that he had never stated at the first Tribunal hearing that he lost his job when he was released from a psychiatric institution in December 2005. On the contrary he claimed that at the first Tribunal hearing he told the Tribunal that he lost his job at the neighbourhood committee in April 2005.
Ground 3 – The Tribunal made its finding based on nothing but its assumption
The Applicant claims the Tribunal made its findings based on nothing but its assumption. The particulars of that claim are that in making a finding regarding his departure from China, the Tribunal simply assumed that:
The applicant's ability to depart the country on his own passport to be inconsistent with the applicant's claimed detention and forced hospitalisation, and also contrary to his claim that the authorities were planning to arrest the applicant again before his departure from China.
The Applicant ended up by saying:
In summary I never ever believed that my application was being assessed by the Tribunal fairly and carefully.
The Applicant did not file any written submissions but attended Court on the hearing. Unfortunately the Minister's lawyers overlooked filing the written submissions prepared by Mr Reilly of counsel on
4th February 2008, and those submissions were not filed until the day before the hearing. A copy of those submissions was not given to the Applicant until the day of the hearing.
I arranged for the interpreter to go through the submissions document with him, but I informed the Applicant that he would be allowed a period of one week in order to provide any written submission in answer to them, written submissions on behalf of the First Respondent. The Applicant provided a further written submission on 21st February 2008.
Submissions
The Applicant told the Court that the Tribunal did not deal with his case according to s.424A. He claimed that the section required the Refugee Review Tribunal to provide him with the information that they considered when they decided the case and they should have let him comment on that information. He also claimed that the Tribunal made use of information that was not relevant to s.424A. In answer to a question from the bench about what information that was, he referred to the laws concerning land confiscation.
The Applicant also said the Tribunal's decision was based on wrong information and said that the tape of the Refugee Review Tribunal hearing could prove that. The Applicant did not have any transcript of the tape with him. Later, he submitted that the Tribunal decision was based on an assumption. He again referred to the tape, which he did not have with him, nor did he provide a transcript of it.
For the Respondent Minister it was submitted that there was no breach of s.424A of the Migration Act, and indeed it was not clear what information within s.424A(1) the complaint related to. Where the complaint related to information concerning the Applicant's departure from China, it was submitted that that was information given by the Applicant to the Tribunal within s.424A(3)(b) and country information concerning departure procedures from China which falls within
s.424A(3)(a). To the extent that the complaint related to identified inconsistencies or implausibilities in the Applicant's evidence, this was not information but a thought process which does not therefore come within the purview of s.424A of the Migration Act.
I am referred to the decision of the High Court of Australia in SZBYR v Minister for Immigration & Citizenship.[3]
[3] (2007) 235 ALR 609 at [18]
The Minister also submits that the second ground, where the Applicant claims that he did not tell the first Tribunal in December 2005, was not supported by any evidence and even if it were established this complaint is no more than a factual error and not a jurisdictional error.
As to the third particular, the claim of the Tribunal decision was based on an assumption, Mr Reilly submitted that that was nothing more than an expression of disagreement with the Tribunal's reasoning process and an appeal for merits review.
The Applicant’s further submission
In his further submission, the Applicant makes three claims:
a)He reiterates his claim that the Tribunal failed to comply with the requirements of s.424A of the Migration Act;
b)He reiterates his claim that the Tribunal made its finding based on incorrect information; and
c)He reiterates his claim that the Tribunal made its finding based on nothing but its assumption. He expresses his disbelief that his application has been assessed “fairly and carefully”.
In his submission that the Tribunal breached the provisions of s.424A of the Migration Act, the Applicant refers to three passages in the Tribunal’s Findings and Reasons:
a) The applicant initially stated that before there were no laws or regulations in China governing the repossession of the land and the payment of compensation and that such law only came into effect after the incident described by the applicant and after he came to Australia. He then stated that even now there were no such regulations. After further questioning by the Tribunal the applicant stated that there was a law governing the repossession of the land by the government at the time when he worked in the neighbourhood committee but the officials decided to ignore it.[4]
b) The applicant did not mention in his earlier Tribunal hearing that he wrote to the authorities in March 2004 to complain about the repossession of land and the taking of bribes.[5]
c) The applicant initially stated that the police went to his home after his arrival in Australia searching for him, but after the Tribunal pointed out that this information was not given previously, he changed his evidence and stated that he gave this as an example and the police did not really go to his place.[6]
[4] Court Book at 148
[5] Court Book at 148
[6] Court Book at 149
The Applicant submitted that the pieces of information quoted above were not the information that he gave to the Tribunal for the purpose of the review (and, therefore, presumably, would not be excluded by s.424A(3)(b)). He claims that:
The key issue here is that the above-mentioned pieces of information are not the information which I have given to the Tribunal; instead, it is the information which has been misstated or misunderstood by the Tribunal. Also, some of the information should not be simply regarded as country information; instead, it should be regarded as the information which was inconsistent with the country information.
The Applicant’s second submission is that the Tribunal made its finding based on incorrect information. The information said to be incorrect is the information about the circumstances in which he lost his job at the neighbourhood committee, referred to in his application. He claimed that he had never stated at the first Tribunal hearing that he lost his job when he was released from the psychiatric institution in December 2005. He asserts that he told the Tribunal at the first hearing that he lost his job at the neighbourhood committee in April 2005.
The Applicant’s claim that the Tribunal made its finding based on nothing but its assumption related to the Tribunal’s finding about his ability to depart from China on his own passport, which the Tribunal found to be inconsistent with his claimed detention and forced hospitalisation. He submits that, contrary to the submissions made on behalf of the Minister, that his claim is not just an expression of disagreement with the Tribunal’s reasoning process and an appeal for merits review, but:
This is the evidence that the Tribunal is NOT constituted by a person who is both actually and ostensibly unbiased, and who will bring an actually and ostensibly unbiased mind when making a genuine evaluation of the evidence given at the hearing.
The Applicant referred the Court to the decision of Smith FM in SZJRH v Minister for Immigration & Anor[7].
[7] [2007] FMCA 2037 at [12]
Conclusions
In considering the matters before the Court I am not satisfied that any breach of s.424A of the Migration Act has been shown. The Tribunal wrote to the Applicant before the hearing on 30th July 2007 in a letter clearly intended to comply with s.424A, putting material to him and seeking his comments and explaining to him why the material was considered to be relevant.
The Applicant's claim that the Tribunal relied on information about confiscation or repossession of land in China, or procedures for people exiting China, is such that this information comes within the exception in s.424A(3)(a). The Tribunal did consider and reject the Applicant's evidence, but evidence given by the Applicant to the Tribunal for the purpose of the review does not fall within s.424A(1). It is specifically excluded by s.424A(3)(b).
The ground in the post-hearing submission that the Tribunal miss-stated or misunderstood the pieces of information referred to and that therefore s 424A(3)(b) does not apply cannot succeed. The applicant is in effect challenging a factual finding by the Tribunal, which is not available on judicial review.
The Applicant's first ground fails.
As to the Applicant's second ground, a complaint that he did not tell the first Tribunal that he lost his job when he was released from the psychiatric institution in December 2005 that he told the Tribunal he lost his job with the neighbourhood committee in April 2005. Even if it is established, it is, as Mr Reilly submits, no more than a factual error and is not a jurisdictional error.
As a factual error, if it is, nothing would turn on the point in any event. There is no jurisdictional error made out and ground 2 fails.
The Applicant claimed that the Tribunal made its finding based on nothing but its assumption. The Tribunal rejected the basis of the Applicant's claim about his ability to depart from China on his own passport, based on its perusal of Independent Country Information regarding exit procedures from China.
There is no assumption that is made out. This is no more than the Tribunal arriving at a conclusion by comparing the Applicant's evidence with Independent Country Information. The Applicant is seeking to challenge a factual finding or a finding arising from a factual finding which amounts to merits review and there is no jurisdictional error. Ground 3 must fail.
The Applicant's claim in his application that he never believed that his application had been assessed by the Tribunal fairly and carefully may either be a claim that the Tribunal failed to consider relevant information or a complaint of apprehended or actual bias. In either case no particulars are provided nor any evidence.
The applicant has made a specific allegation of bias in his post-hearing submission. He has referred the Court to the decision of Smith FM in SZJRH v Minister for Immigration & Anor (supra), where his Honour referred to the opportunity required to be given to an applicant under s 425 to present himself or herself in person at a hearing includes a requirement that the hearing should be held by a person who is both actually unbiased and ostensibly unbiased, and who will bring an actually and ostensibly unbiased mind when making a genuine evaluation of the evidence given at the hearing.[8] With respect, I concur with his Honour’s views, but there must be evidence capable of showing that the Tribunal member did not bring an “actually and ostensibly unbiased mind” to the hearing before jurisdictional error will be found.
[8] [2007] FMCA 2037 at [12]
A finding of bias, if such indeed is the claim, is a serious matter involving personal fault on the part of the decision-maker. It should not be lightly made and it must be clearly alleged and proved. (See SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[9]). In this case, there is no evidence of bias, either actual or apprehended. It is well established that the circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for review, as is the case here.[10] The applicant’s third ground fails.
[9] [2002] FCAFC 361 at [43]
[10] SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [44]
The Applicant has not made out any jurisdictional error. He was offered the opportunity to make further written submissions and has taken advantage of that opportunity. I am mindful of the fact that the Applicant is not legally represented. I have read through the decision and the supporting documents myself in an endeavour to ascertain whether any jurisdictional error can be argued and I am unable to discern any suggestion of jurisdictional error. It would follow that the Tribunal decision is a privative clause decision as defined in sub-section 474(2) of the Migration Act and as such it is not subject to orders in the nature of certiorari or mandamus, which the Applicant seeks in his application.
I do note that the Applicant seeks an order that the matter be remitted to a differently constituted refugee Tribunal for determination in accordance with law. I think it is well established that the Federal Magistrate's Court does not have the power to make an order relating to the constitution of the Refugee Review Tribunal in cases where a matter is to be remitted to the Tribunal. The Full Court of the Federal Court constituted by Emmett, Siopis and Rares JJ in SZEPZ v Minister for Immigration & Multicultural Affairs:
The power on referring a matter to the Tribunal to give such directions as the Court thinks fit did not include a power to give a direction as to how the Tribunal should be constituted[11].
[11] [2006] FCAFC 107 at [35]
In any event, as no jurisdictional error has been made out the question of remitting the application to the Tribunal does not arise. It follows that the application must be dismissed and I will hear submissions as to costs.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 19 February 2008
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