SZLGM v Minister for Immigration
[2008] FMCA 502
•24 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLGM v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 502 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal not required to provide the applicant with tape recording of his interview with the first respondent’s department – inadequate interpreter services at departmental interview is not a basis to set aside Tribunal’s decision – allegation of bias not proved – breach of s.425 of the Migration Act 1958 not proved. |
| Migration Act 1958, ss.415, 422B, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 81 ALJR 515 |
| Applicant: | SZLGM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2727 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 10 April 2008 |
| Date of Last Submission: | 10 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 24 April 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr H.P.T Bevan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2727 of 2007
| SZLGM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, he claims, he organised an anti-government protest. He alleges that while in China he demonstrated against government corruption and that this subsequently led to him being detained for a total of 52 days. The applicant arrived in Australia on 13 February 2007.
The applicant claims to fear persecution in China because of his actual or imputed political opinion.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 1 May 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.
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.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 11 of the Tribunal’s decision (Relevant Documents (“RD”) pages 84 – 91).
Protection visa application
In the applicant’s protection visa application, he made the following claims:
a)the applicant and a distant relative, HH, set up a seafood business. In March 2000 they rented a stall at the Honglu Agricultural Market (“Market”). Business thrived and they began to look for larger premises;
b)around April 2006 they found a former meat shop at the Market which was due to go to rental auction on 9 June 2006. In early June 2006 the auction was cancelled. The applicant learnt that a relative of the Vice-President of the provincial government had been granted the lease;
c)the applicant and other local businessmen were angry. He felt that “our basic human rights had been trampled on”. He encouraged the disgruntled businessmen to join together and demand an explanation from the Market’s administration about the auction and the lease;
d)on the morning of 9 June 2006 the applicant organised about one hundred businessmen at the Market to demonstrate outside the Market’s administrative office. Thirty minutes later, police from the Honglu Public Security Bureau (“PSB”) and Fuqing PSB arrived. Five or six police assaulted the applicant and took him to the police station;
e)the applicant was detained from 9 June to 31 July 2006, a total of fifty two days. The police beat and tortured the applicant whenever he tried to argue with them. The authorities had no evidence of “anti-government activity” but forced him to confess to this anyway;
f)the applicant’s relatives and friends paid bribes to the police, market administrative officials and government officials in order to secure the applicant’s release. However, the police refused to release him until he confessed to anti-government activities;
g)the PSB sealed the business of the applicant and HH on 9 June 2006. They were told by the Market’s administration that they would never be allowed to re-enter the Market;
h)after the applicant’s release on 31 July 2006, he and HH tried to start up another seafood business but they were refused a business licence because of his serious “political problems”. From then on, the applicant and HH could only do “odd jobs”;
i)police often threatened, questioned and harassed the applicant because of his “bad record” with the PSB. He was unable to live a normal life;
j)around November 2006, a post-graduate of the Graduate School of Chinese Academy of Social Sciences (“AZW”) visited Honglu and decided to help the applicant. She criticised the actions of the Market’s administrators and the applicant’s illegal detention. She promised to report the applicant’s experiences to the central government in Beijing;
k)on 20 November 2006 AZW arranged to meet the applicant at a hotel for further talks. The applicant arrived late and witnessed AZW being forced into one of two police cars outside the hotel. He was also advised by a neighbour not to return home as the police were also there;
l)from then on, the police called on the applicant’s home regularly as they regarded him as an “anti-government” activist and they accused him of helping AZW organise dissident activities;
m)the applicant learnt that AZW was sent to a labour camp in the Jiangxi province and accused of being a member of the Chinese Democracy Party; and
n)the applicant went into hiding for three months and eventually fled China with the help of family and friends.
Protection visa interview
The Tribunal listened to a tape recording of a protection visa interview the applicant had had with the Department on 26 April 2007 and noted additional points which included the following:
a)the applicant had applied for a business visa in Shanghai because he had been in hiding there;
b)the applicant had led one hundred people in the protest;
c)AZW visited Fuqing in order to survey social problems. She had possibly heard about the applicant’s story from a journalist. He turned away from the hotel where he was meant to meet her when he saw police cars outside; and
d)the documents provided to support the applicant’s business visa application for his travel to Australia had been arranged through a friend and were fabricated.
Tribunal hearing
At the Tribunal hearing, the applicant made the following additional claims:
a)after his release from detention the applicant worked as a courier up to 20 November 2006;
b)the applicant was a leader and organiser of the protest against Market administrators as he had good contacts with Market staff;
c)while in detention the applicant was beaten although he did not require any medical treatment. He still suffers occasional pain in his leg;
d)around 12 August 2006 the authorities threatened the applicant. They warned him that he would “fail” in his political endeavours and that they would deal with him “slowly”. However, the police never searched the applicant’s home;
e)when the applicant arrived at the hotel to meet AZW, he saw the police and turned around immediately. He did not actually see AZW being arrested; and
f)he did not believe that AZW was a member of the CDP as that party did not exist in China.
Response to s.424A letter
In response to a s.424A notice sent to him by the Tribunal the applicant made the following submissions:
a)the applicant was able to reside at the one address from 1997 to 2006 as the authorities’ real purpose in detaining him was to frame him and to deter others from similar activities;
b)things changed with the applicant made contact with AZW, who was a “secret member of the [CDP]”. From then on, the authorities regarded the applicant as a dissident and suspected him of providing anti-government materials to AZW; and
c)the applicant did see AZW being placed in a police car, but was unsure whether or not it was an arrest.
The Tribunal’s decision and reasons
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 that the applicant led protests in mid-2006 which led to his detention for fifty two days and subsequent ill-treatment, noting that:
i)the applicant gave hesitant evidence about the alleged corruption of the auction process and its consequences but spoke with ease about the Market;
ii)he spoke hesitantly of the contents of the confession he was forced to make;
iii)he referred to sustaining a leg injury during his detention but also claimed that he began work as a courier just three days after his release;
iv)the Tribunal found the applicant’s account of his alleged detention somewhat rehearsed yet lacking in peripheral detail;
v)the applicant’s account of his experiences after his release from detention suggested that there was in fact no such detention or other adverse attention; for example, he said at various times that he was not able to lead a normal life after his release, but also said that the police did not search his home and that the authorities allowed him to work as a courier almost immediately after his release;
vi)the applicant only mentioned the police threats made in August 2006 in response to the Tribunal’s questioning. He claimed that he was more alert after these threats, but appeared to have taken no specific precautions in his work, family or living arrangements;
vii)the Tribunal did not accept the applicant’s explanation that there was a lack of follow-up official action because the authorities had no evidence of his “anti-government” activities. The Tribunal found that the applicant was distancing himself from his initial claim because he recognised that it was no longer credible;
b)consequently the Tribunal did not accept that the authorities targeted the applicant because of his involvement in a protest or because of his actual or imputed political opinion. It found that the applicant was therefore not detained, forced to write a confession, deprived of his business licence for any political or Convention-related reason, denied an opportunity to earn a living, monitored or threatened or that his wife, friends or colleagues were questioned or harassed;
c)the Tribunal did not accept that the applicant no longer operated a market stall at the time of his departure from China due to circumstances involving persecution within the meaning of the Act;
d)the Tribunal also did not accept the applicant’s claims arising out of his association with AZW, noting that:
i)it did not find the applicant’s evidence about AZW persuasive; and
ii)the applicant provided inconsistent information about AZW’s political affiliation and whether or not he believed that she was a member of the CDP;
e)the Tribunal did not accept that the applicant departed China from Shanghai because authorities were less likely to find him there, noting that:
i)it did not accept the applicant would have spent three months as a fugitive while waiting for family and friends to make arrangements for his departure; and
ii)his passport showed a temporary business visa granted in Shanghai which suggested to the Tribunal that he did not choose Shanghai as a means of evading detention but simply because there was the opportunity to get an Australian visa issued there;
f)the Tribunal rejected the applicant’s claim that after his departure the authorities called on his wife or that any Market associates or anyone else suffered harm for reasons connected with the applicant; and
g)the Tribunal did not accept that the applicant had any political opinion or commitment that would motivate him to engage in any political activities if he returned to China.
Proceedings in this Court
The grounds of the application can be summarised as follows:
a)Tribunal failed to comply with s.424A of the Act.
b)Tribunal was biased.
c)Tribunal failed to comply with s.425 of the Act.
Dealing with each of these grounds in turn:
Breach of s.424A
The applicant particularises the allegation that the Tribunal breached its obligations under s.424A(1) by saying:
a)the Tribunal relied on information given during his interview with the first respondent’s Department;
b)the Tribunal did not give the applicant the audio recording of the departmental interview; and
c)the interpretation services at the departmental interview were inadequate.
The Tribunal’s decision, found under the heading “Findings and Reasons” in its decision record, discloses that it did not use such information as the applicant gave the departmental officer in the interview on 26 April 2007 as the reason or part of the reason for affirming the delegate’s decision. It is apparent that the information which the Tribunal relied upon to reach its decision was the information which the applicant gave the Tribunal during the course of its hearing. On the facts, this element of this asserted ground of review is not made out.
As to the assertion that the Tribunal was obliged to provide the applicant with a copy of the sound recording of the departmental interview, this is misconceived. Were the Tribunal to have relied on information arising out of the departmental process then it might have been required to give the applicant particulars of that information or notice of issues arising out of it. However, such obligations would not extend to providing the applicant with a copy of the sound recording or a transcript of the interview. The Tribunal’s obligations under the natural justice hearing rule are codified by s.422B of the Act in those sections found in div.4 of pt.7 of the Act. None of those sections obliges the Tribunal to do what the applicant says it should have done.
To the extent that the interpreter services at the departmental interview were inadequate, this does not amount to a basis upon which the Tribunal’s decision might be set aside. The Tribunal’s role is to review the decision of the delegate and exercise the power which had been conferred on that delegate: s.415(1). It is not a process whereby the Tribunal corrects the decision of the delegate or reviews it in that sense; it is a process whereby the Tribunal can substitute its own decision for the delegate’s. Consequently, an applicant is given an opportunity to put evidence and arguments to the Tribunal in respect of issues arising out of that delegate’s decision. Had the applicant considered that the delegate’s decision record did not accurately set out the information which he gave it then the Tribunal hearing was his opportunity to say so. There is no suggestion that he made such a submission to the Tribunal.
Bias
The allegation that the Tribunal was biased was particularised as follows:
a)The Tribunal has in fact refused to consider, properly and fairly, my explanation or my comments against the issues or the information provided by the Tribunal after the Tribunal’s hearing. The Tribunal’s decision is mainly relied on its assumption but without any supported evidence or substantial reasons.
It is not identified whether actual or apprehended bias is alleged against the Tribunal but a review of its decision record indicates that neither of such allegations could be made out. An accusation of bias is a serious matter which must be proved by convincing evidence. The applicant put no evidence before the Court in support of this allegation and the only evidence which the Court has which is relevant to the allegation is the Tribunal’s decision record. Nothing in that decision record would support a finding that the Tribunal’s mind was closed to persuasion or that a fair-minded lay observer might apprehend that the Tribunal was not bringing an impartial and unprejudiced mind to the review. Indeed, quite the contrary. The Tribunal clearly went to some length to record and consider the allegations made by the applicant. Moreover, at its hearing on 11 July 2007, it undertook a hearing which, based on its record, was one characterised by reasonable and proper enquiry, displaying no signs of pre-judgment.
In submissions, the applicant said that the Tribunal was biased because it affirmed the delegate’s decision based on departmental information which it did not check. As has already been noted in relation to the first asserted ground of review, the Tribunal’s decision did not turn on what the applicant had said to the department at an earlier stage. Rather, its decision was based on the evidence which the applicant had given to it at its hearing. Consequently, this allegation discloses no bias on the part of the Tribunal.
At the hearing in these proceedings, when queried by the Court concerning what the bias was which the applicant alleged, he responded, in essence, that although his allegations were true, the Tribunal did not accept them.
The fact that the Tribunal was not satisfied that the applicant met the criteria for a protection visa and did not accept several of his allegations as being truthful, is not demonstrative of bias. Given the inconsistencies and improbabilities in the evidence he gave the Tribunal, it was open to the Tribunal, on a logical basis, to reject those allegations as being untrue. In doing so, the Tribunal did not evidence bias of either variety.
Breach of s.425
The applicant submitted that the Tribunal did not give him a genuine chance to give his evidence and present his arguments. He also said that the Tribunal should have given him an opportunity to comment on the Tribunal’s concerns regarding his claim.
As to the first of these elements, no evidence has been submitted which would suggest that the hearing before the Tribunal was anything other than a real and meaningful one at which the applicant was given every opportunity to put before the Tribunal that evidence and those arguments which he wished it to receive. It is apparent from the Tribunal’s summary of its hearing that it did put to the applicant its various concerns regarding elements of his claim and the allegations of fact advanced in support of that claim. It cannot be concluded, based on the evidence before the Court, that the applicant was not given a genuine opportunity to give evidence or present arguments. In this regard, the Tribunal’s concluding note regarding the hearing is relevant:
The applicant had no comment in response to these concerns, and he had no further substantive additional comment. (RD 90)
As to whether the Tribunal should have notified the applicant of its concerns, it is to be noted that the Tribunal has no obligation to disclose its mental processes or to give a running commentary on what it thinks about the evidence that is given: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 81 ALJR 515 at 523 [48]. The products of the Tribunal’s reasoning processes are not issues arising in respect of the decision under review and thus no s.425 obligations arose in respect of them.
Consequently, the third asserted ground of review is not made out.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 24 April 2008
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