SZLAT v Minister for Immigration

[2007] FMCA 2108

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLAT v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2108

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegations of poor translation at Tribunal hearing unsupported by evidence – allegation of want of good faith is a very serious matter – bad faith cannot be constituted by recklessness and requires Tribunal to deliberately make decision without carrying out its statutory duty – merits review not available in judicial review proceedings – allegation of apprehended bias not made out.

Migration Act 1958, ss.424A, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397
NAKF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 210
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
Johnson v Johnson (2000) 201 CLR 488
SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190

Applicant: SZLAT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2105 of 2007

Judgment of: Cameron FM

Hearing date: 5 December 2007

Date of Last Submission: 5 December 2007

Delivered at: Sydney

Delivered on: 5 December 2007

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Ms. V. McWilliam

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2015 of 2007

SZLAT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of China where, he claims, he engaged in anti-government activities. He alleges that while in China he organised protests against government corruption and that this subsequently led to him being arrested, detained and interrogated for 20 days. The applicant left China for Australia and, he alleges, since his departure police have gone to his home in China on three occasions with what he described as an arrest permit.

2. The applicant claims to fear persecution in China because of his political activities and beliefs.

3. After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 14 February 2007. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

4. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

5. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 7 of the Tribunal’s decision (Court Book (“CB”) pages 82 – 85). Relevantly, they are in summary:

   a)the applicant was an eel farmer in China;

   b)on 10 August 2006 the applicant’s eel farm was destroyed by a typhoon. He was told that he would be compensated by the central government for his loss but from August 2006 to October 2006 all he received was 50kg of rice and a temporary shed for shelter;

   c)the applicant and other typhoon victims went to the “Fuding City Municipal Government” many times to ask for financial support but corrupt officials did not give them any assistance;

   d)the applicant lost confidence in the Chinese authorities and decided to travel overseas. In early November he obtained a passport;

   e)while he was preparing to go overseas, he was contacted by a reporter who told him that the funds allocated to assist typhoon victims had been taken by corrupt government officials. The reporter asked if the applicant wanted to join her in organising protests against these corrupt officials and he agreed;

   f)on 11 November 2006 the applicant travelled to the reporter’s home to assist in planning the protest. About 20 people were present. The reporter planned to organise a large open sit-in protest in front of the “Fuding Municipal Government” on 2 December 2006. The applicant was one of four group leaders. Each group was to distribute 1000 copies of a petition around the city and to recruit many people to join the protesters. The petition urged the government to investigate corrupt officials and help typhoon victims;

   g)on 22 November 2006 the reporter was arrested by the Public Security Bureau (“PSB”). The applicant and the other group leaders decided to move forward the date of the protest and changed its venue to the main PSB building;

   h)on 25 November 2006 more than 200 people took part in a sit-in protest in front of the main building of the PSB. After half an hour, the protest was dispersed by police;

   i)a friend of the applicant was beaten by the police. When the applicant tried to help he was arrested, detained and interrogated for 20 days. He was the only person to be arrested;

   j)the police tried to make him confess and reveal the activities of the reporter;

   k)on 15 December 2006 the applicant’s friends paid a bribe to the police to secure his release. The applicant was released on condition that he leave Fuding never to return, promise not to engage in future anti-government activity and accept further investigation by the Chinese authorities;

   l)after his release, the applicant went home but subsequently returned to Fuding where he later distributed 500 copies of the reporter’s petition to different government agencies and local people in the area;

   m)this came to the attention of the PSB and the applicant left for Australia with a tour group; and

   n)since arriving in Australia, the applicant’s mother has informed him that the police have gone to his home three times and four people who helped him distribute the petition have been arrested.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:

   a)the Tribunal did not accept the applicant’s claim to be involved in protests against corrupt government practices, noting that:

   i)the applicant’s evidence at the hearing about key aspects of his claims was vague and lacking in detail;

   ii)he did not directly answer many of the Tribunal’s questions;

   iii)he could only provide limited information about the reporter who apparently contacted him about becoming involved in the protests;

   iv)the applicant was unable to explain clearly how he had learnt about the reporter’s arrest despite his claims that he was one of the protest leaders and had worked closely with her; and

   v)he was unable to articulate what the petitions he distributed were about beyond saying that they were about “doing justice”;

   b)the Tribunal did not find it credible that the applicant would have protested outside the PSB if he was protesting about corrupt government officials;

   c)the Tribunal did not accept that the aim of the protest was to secure the reporter’s release, noting that:

   i)his own evidence was that no-one in the group attempted to find out what she had been charged with or how to secure her release;

   ii)the applicant made no attempt himself to find out about her or how to secure her release; and

   iii)this claim was inconsistent with the applicant’s evidence that he was concerned about the reporter’s welfare;

   d)the Tribunal did not accept the applicant’s evidence that he was not planning to travel overseas when he obtained his passport in November 2006, noting that it did not find credible the applicant’s claim that he would go to the trouble and expense of obtaining a passport if he was not making plans to leave China at that stage;

   e)the Tribunal found that from at least October 2006 the applicant was planning to travel overseas for better economic opportunities;

   f)the Tribunal did not accept that the applicant continued to distribute petitions after his release from detention, noting that the Tribunal found it not credible that the applicant would have been able to distribute these petitions after detention without coming to the attention of the authorities;

   g)the Tribunal doubted that the applicant was wanted by Chinese authorities when he left China, noting that the applicant’s own evidence was that he had no difficulty leaving China at the airport; and

   h)the Tribunal concluded that the applicant was not a credible witness. It did not accept that he had told the truth about the events leading up to his departure from China.

Proceedings in this Court

1. The grounds of the amended application were pleaded as follows:

   1. The Tribunal assessed my credibility incorrectly [or the Tribunal made its decision with bias.]

   2. The Tribunal failed to comply with its obligation under s.424A(1) of the Act.

2. In his submissions today the applicant raised two additional issues, namely:

   a)the Tribunal misunderstood his claim; and

   b)the Tribunal did not give him enough time to give all the evidence he wished to give.  

3. Dealing with each of these grounds in turn:

The Tribunal assessed my credibility incorrectly or the Tribunal made its decision with bias

1. The first pleaded ground of review is supported by nine lettered paragraphs of particulars. Amongst the issues raised by those particulars is a claim that the interpreter services available to the applicant at the Tribunal hearing were inadequate. No evidence by way of transcript has been put before the Court to support this allegation. It should also be noted that in the “RRT Hearing Record” reproduced at CB 69, it is recorded that the interpreter who attended the Tribunal hearing was accredited to NAATI level 3 standard.

2. Further, there is nothing apparent in the Tribunal's decision record which would support a conclusion that the applicant had any difficulties communicating during the course of the Tribunal hearing. Consequently, I cannot conclude that the applicant had any difficulties in making himself understood during the course of the Tribunal hearing or that he could not understand what was being said to him.

3. Another element of the particulars to para.1 of the amended application is that the applicant had sometimes been confused by unclear or improper questions put by the Tribunal member. The applicant has not identified what unclear or improper questions were put to him by the Tribunal and again it is worth observing that no transcript of the Tribunal hearing has been placed before the Court. 

4. In relation to that element of this particular which relates to “improper” questions put by the Tribunal, the applicant misunderstands the Tribunal's role and his own role at the Tribunal hearing. The Tribunal has no obligation to make inquiries or to ask any particular question, it being for the applicant to satisfy the Tribunal that he meets the criteria for a protection visa. But, in any event, to the extent that the decision record sets out a summary of the Tribunal hearing and identifies questions posed by the Tribunal, it does not disclose any impropriety on the part of the Tribunal. 

5. The applicant further particularises para.1 of the amended application by saying that the Tribunal made assessments which were illogical or incorrect. As to the assertion of illogicality, it cannot be made out. The Tribunal's decision record demonstrates that the conclusions it reached were well open to it on a logical and reasoned basis and there is no suggestion of the sort of irrationality which might vitiate the Tribunal's decision.

6. The applicant also asserts that the Tribunal failed to genuinely and fairly consider the evidence he adduced. This suggests that the Tribunal failed to approach its obligations in good faith. To the extent that this is an allegation of bad faith, it is a serious allegation to make. In SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397 quoted in NAKF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 210 the Full Court of the Federal Court is recorded as having said:

   An allegation of bad faith is a very serious one.  Bad faith in this context implies a lack of honesty or genuine attempt to undertake the task and involves a personal attack on the honesty of the decision-maker.  (at [107]-[108])

7. As Gyles J said in NAKF's case:

   Bad faith cannot be constituted by recklessness in the sense of negligence, no matter how gross the negligence.  A Tribunal member cannot blunder into bad faith, no matter how stupid and careless the Tribunal member is, any more than a person can blunder into deceit or wilful blindness.  What is required to make out this case is to find that the Tribunal member was recreant to his duty by wilfully and deliberately making the impugned decision without attempting to carry out the statutory duty lying upon him. (citations omitted) (at 219 [24])

8. The applicant has further particularised the first paragraph of the amended application by asserting that the Tribunal made its finding based on “nothing but its unwarranted assumptions”. This might be a reference to the Tribunal's conclusions that it was not credible that the applicant could distribute the 500 petitions without coming to the attention of the authorities or to his ability to leave China without difficulty or perhaps to both of these. However, the Tribunal's conclusions on these points are consistent with an expectation that Chinese authorities operate with a reasonable degree of effectiveness. To the extent that this was an assumption made by the Tribunal, it was a reasonable one to make.

9. The remaining particulars of the first paragraph of the amended application are generally an attack on the Tribunal's fact-finding and its conclusion on the merits of the review application before it. In these proceedings the Court is concerned with the fairness of the Tribunal's process, not with the fairness of the decision reached by the Tribunal. Consequently, matters of fact-finding are matters for the Tribunal, not for the Court. The Court cannot undertake a reconsideration of the facts found by the Tribunal or the merits of the claim which was brought to the Tribunal. Here the Tribunal's findings were open to it on the evidence. Most particularly, the Tribunal's decision was one based on a credibility finding and the Tribunal's conclusion on such a point is a matter par excellence for it, as McHugh J said in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407.

10. The applicant has further alleged in para.1 of the amended application that the Tribunal was biased. He has particularised this as apprehended bias rather than actual bias. In order to prove apprehended bias the applicant needs to demonstrate that a fair-minded lay observer who was properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias might reasonably apprehend that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the question before it: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; Johnson v Johnson (2000) 201 CLR 488.

11. Given the absence of a transcript, the only evidence before the Court touching on this issue is what is contained in the Tribunal's decision record. There is nothing in that decision record to suggest anything other than a conscientious attempt by the Tribunal to undertake its duties and nothing to suggest that the Tribunal's mind was not open to persuasion.

Breach of s.424A

1. The second ground pleaded in the amended application is an alleged breach of s.424A of the Act. Consideration of the Tribunal's decision reveals that the information relied upon when reaching its conclusion was information which had been provided to it by the applicant at the Tribunal hearing. Consequently, the information in question fell within the exception found in s.424A(3)(b) with the result that such information was not required to be notified to the applicant pursuant to s.424A(1).

2. To the extent that the applicant complains about the conclusions reached by the Tribunal, the High Court has made it clear in SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 that conclusions and thought processes are not “information” as that word is understood in the context of s.424A.

3. To the extent that the applicant might be referring to the Tribunal's conclusion that it was not credible that he could distribute 500 petitions without apprehension or that he left China without difficulty, these conclusions might suggest reliance by the Tribunal on information which was not notified to the applicant. It is to be noted that no such information was actually referred to by the Tribunal in its decision. As already stated in these reasons, the Tribunal's conclusion on these points is quite consistent with a reasonable assumption that the Chinese authorities operate with a reasonable degree of effectiveness. Consequently, I find that the Tribunal did not breach its obligations under s.424A.

Tribunal misunderstood the applicant’s claim

1. At the hearing today the applicant submitted that the Tribunal misunderstood the claim that he was making. However, a consideration of the Tribunal's decision record demonstrates that this allegation has no factual basis. The Tribunal set out the facts which the applicant alleged entitled him to a protection visa. It discussed those facts with no apparent misunderstanding. Having understood the claim which was being made by the applicant, the Tribunal was simply not satisfied that the version of events advanced by him was credible. Consequently, I cannot conclude that the Tribunal failed to exercise its jurisdiction by reason that it misunderstood or misconceived the claim which had been made by the applicant. 

Tribunal did not give the applicant enough time to give all the evidence he wished to give 

1. The applicant also submitted today that the Tribunal had not given him enough time to explain, which he described as the member not waiting for him to finish his explanation before the Tribunal moved on to the next issue. The applicant also said that he asked the interpreter to slow down. However, in the absence of a transcript, there is no basis to conclude that the applicant was not given sufficient time to give whatever evidence or to make whatever arguments he wished to give or to make. In this regard, it should be noted that the “RRT Hearing Record" discloses that the hearing took almost exactly two hours. Consequently, I cannot conclude that this asserted ground of review is made out.

Conclusion

1. For these reasons jurisdictional error on the part of the Tribunal has not been demonstrated. Consequently, the application will be dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date:  21 December 2007