SZLGP v Minister for Immigration
[2010] FMCA 592
•26 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLGP & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 592 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – first applicant claiming political persecution in China – Tribunal making enquiries in China in accordance with a judgment of the Federal Court – enquiries revealed that while some factual claims made by the first applicant were true, others were not – Tribunal rejecting the first applicant’s claims of persecution – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), s.424A |
| Buck v Bavone (1976) 135 CLR 110 Parramatta City Council v Pestell (1972) 128 CLR 305 R v Australian Stevedoring Industry Board; Ex part Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 SZNPG v Minister for Immigration (2009) 112 ALD 603 |
| First Applicant: | SZLGP |
| Second Applicant: | SZLGQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1026 of 2010 |
| Judgment of: | Driver FM |
| Hearing date: | 4 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 26 August 2010 |
REPRESENTATION
The Applicants appeared in person
| Counsel for the Respondents: | Ms R Francois |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 11 May 2010 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1026 of 2010
| SZLGP |
First Applicant
SZLGQ
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 15 April 2010. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.
The following statement of background facts is derived from the Minister’s outline of submissions filed on 28 July 2010.
The applicants are husband and wife and citizens of China who arrived in Australia on 21 December 2006 and 28 March 2006 respectively. They applied for protection visas on 2 February 2007. Only the first applicant, the husband, made claims for protection under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees.
The first applicant claimed to fear persecution in China from the authorities on the basis of his political opinion due to the assistance he rendered to two fugitive relatives who the authorities in China were seeking to arrest due to their protest activities arising from the confiscation of their land without compensation (court book “CB” 36 ‑ 40).
On 27 March 2007, a delegate of the Minister refused to grant the applicants protection visas (CB 46 - 56) noting, among other things, the lack of evidence in support of the application. On 27 April 2007, the applicants applied to the first Tribunal for a review of the delegate’s decision (CB 57 - 61). The applicants attended a hearing before the first Tribunal on 3 and 6 July 2007 (CB 91.8). On 9 August 2007, the first Tribunal handed down its decision affirming the decision of the delegate (CB 83 - 106). On 2 September 2008, the Federal Court remitted the application back to the Tribunal (CB 118 - 133).
The applicants attended a hearing before the second Tribunal on 10 November 2008 (CB152 [14]) and for the first time, provided two letters in support of their application (CB 137 – 142, CB 157 [58]). On 19 February 2009, the second Tribunal handed down its decision affirming the decision of the delegate (CB 146 - 179). On 11 December 2009, the Federal Court, constituted on appeal by Logan J, remitted the application back to the Tribunal (CB 185 - 208). Logan J held that the Tribunal had erred by failing to make an obvious enquiry to verify the contents of one of the new letters, dated 6 March 2007, which had alleged that the first applicant’s interest in his fish farm had been confiscated and that he had been dismissed from his employment at the fish farm due to the adverse interest of the authorities (at [50] - [51]).
On 22 January 2010, the third Tribunal made the “obvious enquiry” (CB 221) through the Department of Foreign Affairs and Trade (DFAT) to the Australian Diplomatic Post in China. On 3 March 2010, the third Tribunal received the reply which indicated that, while the first applicant did have an interest in the fish farm, his interest in it had not been confiscated and that he had not been dismissed from his employment (CB 223 – 226).
The applicants attended a hearing before the third Tribunal on 24 March 2010 (CB 248). On 25 March 2010, the third Tribunal wrote to the first applicant and, having already discussed the issues at the hearing (CB 289 [83]), invited his further comments on the DFAT information pursuant to s.424A of the Migration Act 1958 (“the Migration Act”) (CB 253 – 256). On 7 April 2010, the first applicant responded and provided his comments (CB 260 – 263). On 16 April 2010, the third Tribunal handed down its decision affirming the decision of the delegate.
Third Tribunal’s decision
The Tribunal did not accept the first applicant’s claims as it found that he was not a witness of truth (CB 292 [93]). The Tribunal reached this conclusion based on: his inconsistent evidence on key aspects of this claims before each of the Tribunals and during the hearing before it (CB 293 [98] - [100]); the adverse information from DFAT about his fish farm (CB 294 [101] - [105]; inconsistent country information about the incident he claimed his relatives were involved in (CB 293 [97]); and, the ease of document fraud in China (CB 295 [106]). The Tribunal thus further held, in relation to the allegedly corroborative evidence, that the letter of 6 March 2007 was not genuine (CB 295 [105]), gave no weight to the letter of 7 August 2008 given the other problems with the first applicant’s evidence (CB 295 [107]) and noted that the second applicant’s evidence could rise no higher than her husband’s evidence as she had no direct knowledge of the events (CB 295 [108]).
The application and evidence
The applicants rely upon their show cause application filed on 11 May 2010. That application, while expressed discursively, relevantly raises three grounds:
a)the Tribunal erred by failing to consider the first applicant’s response to the s.424A letter as set out in his statutory declaration of 7 April 2010;
b)the Tribunal’s decision gives rise to an apprehension of bias because it rejected the first applicant’s statutory declaration of 7 April 2010 for the reason that it preferred the evidence obtained through the Department; and
c)the Tribunal erred because its reasoning process was irrational, illogical and/or unreasonable.
I have before me as evidence the first applicant’s supporting affidavit filed with the show cause application and the court book filed on 24 June 2010.
Submissions
Only the Minister filed written submissions. The first applicant made oral submissions in which he addressed two points that he sees as crucial. The first is that the enquiries undertaken by the Tribunal in consequence of the most recent decision of the Federal Court establish that the fish farm was still operating at the time of that enquiry and that it belonged to him. This is said to support his credibility. Secondly, the first applicant asserts bias. The second applicant made submissions supporting her husband and in closing submissions made an additional point that she would like to return to China (and their family would like them both back) but she is unable to return because of her husband’s circumstances. The second applicant said that her husband is distressed that by reason of his reduced financial circumstances, he is no longer able to provide for his family and this has caused him a loss of face.
Consideration
The applicants’ contentions concerning the significance of the enquiries made by the Australian diplomatic post in China were considered by the Tribunal. At [104]-[105] of its reasons (CB 294-295) the Tribunal said:
The applicant asserted that the inquiries made by the Australian Department of Foreign Affairs and Trade showed that the business was in fact still running because on one occasion the phone number given for the company had been answered by a person who had said that she was a new employee and that she was not able to provide any information and that everyone else was out of the office. However when the Department tried to call the number again at lunch time as suggested the phone was not answered. The applicant said that it was not unusual that the Department had been unable to obtain any answer because few of the staff were in the office but I prefer the evidence obtained through the Department’s inquiries to the applicant’s own evidence in this regard.
Having regard to the fact that the Australian Department of Foreign Affairs and Trade attempted to contact the fish farm several times without success I do not accept that the Fuqing Industrial and Commercial Administration Bureau has refused to consider the farm’s application for renewal of its business registration because the applicant was actively involved in anti-Communist and anti-government activities and the business was under investigation by the PSB, as the applicant claims. I find on the evidence before me that the farm failed to renew its registration in 2006, 2007, and 2008 and that its business registration was revoked in February 2009. I do not accept that the applicant was dismissed from his positions at the farm or that his shares were sold or confiscated and I consider that it follows that the letter which the applicant produced to the second Tribunal dated 6 March 2007 from the Fuqing Municipality … Aquatic Farm is not genuine. I find on the evidence before me that the farm failed in 2006.
The application does not establish any jurisdictional error by the Tribunal. I find myself in agreement with the Minister’s submissions concerning the grounds raised in the application.
Failure to consider evidence
The first ground of review fails at a factual level. The third Tribunal considered and took into account the contents of the first applicant’s statutory declaration of 7 April 2010 (CB 291 [88] – [89], CB 294 [101 – [106]).
Bias
The second ground of review acknowledges that the third Tribunal did take into account the first applicant’s statutory declaration of 7 April 2010 but alleges that the consideration the Tribunal gave to that evidence gives rise to an apprehension of bias.
The principles applied in determining whether this error has occurred were recently summarised in SZNPG v Minister for Immigration[1] as follows:
[1] (2009) 112 ALD 603
[34] This raises an issue of whether the tribunal decision is vitiated by a reasonable apprehension of bias. The test for apprehended bias was established by the High Court in Ebner v Official Trustee in Bankruptcy[2] at [6] and reiterated in Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd.[3] The test is generally put as formulated in the joint reasons of Gleeson CJ, McHugh, Gummow and Hayne JJ:[4]
[2] 112 ALD 603 at 614
[3] (2006) 229 CLR 577; 231 ALR 663; 70 IPR 468; [2006] HCA 55
[4] Ebner at [8]
[8] The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
[35] The test was modified slightly in relation to the tribunal in Re Refugee Review Tribunal; Ex parte H[5] at [28]:
[5] (2001) 179 ALR 425; [2001] HCA 28
[28] Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is 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. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
[36] The Full Federal Court recently restated the relevant principles in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd[6] at [70]–[74]. At [70] Greenwood J (with whom Emmett J agreed) said:
[70] The basic principle upon which the common law system of adversarial trial rests is that the Tribunal is independent and impartial. So important is the principle that even “the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined” (Ebner v Official Trustee in Bankruptcy (2002) 205 CLR 337 ; 176 ALR 644 ; 63 ALD 577 ; [2000] HCA 63 at [7], per Gleeson CJ, McHugh, Gummow and Hayne JJ (Ebner)). The apprehension of bias principle finds expression in this test (Ebner at [6]) (leaving aside any question of waiver or necessity):
… a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
[37] As noted above, in considering an issue of an apprehension of bias, two steps are required. The first is the identification of what it is said might lead a decision maker to decide a case other than on its legal and factual merits and second, the articulation of the logical connection between the matter and the feared deviation from the course of deciding a case on its merits. The test is an objective one based upon the consideration of a hypothetical fair-minded lay observer.[7] The observer is taken to be “reasonable”, and must be neither complacent nor unduly sensitive or suspicious.
[6] (2009) 174 FCR 175; [2009] FCAFC 8
[7] See Ebner at [8]
In this case, the applicants have not explained the reason why the third Tribunal might be biased in their case. Even if the applicants had provided such a reason, the conduct said to indicate such bias cannot sustain such an allegation. In particular, the applicants have alleged that the third Tribunal’s preference for the evidence in the DFAT report to the explanation given by the first applicant in his statutory declaration of 7 April 2010 gives rise to an apprehension of bias. The difficulty for the first applicant is that the third Tribunal’s preference for that evidence has occurred in the context where:
a)the DFAT report contradicts the allegedly corroborative letter of 6 April 2007 that his shares in his fish farm were confiscated and he was dismissed due to the adverse interest of the authorities;
b)the available country information indicates the ease with which fraudulent documents can be obtained from China; and
c)the first applicant was unable to maintain a consistent oral account of key aspects of his claims.
In these circumstances, the third Tribunal’s preference for the evidence in the DFAT report was probably inevitable. A hypothetical, fair minded lay observer who “who is 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” would take these matters into account and could not reasonably conclude that the Tribunal’s preference for the information in the DFAT report was an indication of bias.
Irrationality, illogicality and unreasonableness
This ground is based on the proposition that the telephone call made by the diplomatic post to the fish farm established that the fish farm was still operating and that the Tribunal’s finding at [105] of its reasons (CB 295) that the farm failed in 2006 is clearly wrong.
The question of irrationality, illogicality and unreasonableness was recently reconsidered by the High Court in Minister for Immigration v SZMDS[8]. Gummow A-CJ and Kiefel J held that there was illogicality by the Tribunal in making a critical inference, although warning the Court should not “lightly” come to such conclusions (at [23] - [24] and [40] – [42]); Heydon J held[9] that the Tribunal’s reasoning was not illogical (at [75], [77], [84] and [86]); Crennan and Bell JJ found no illogicality in the Tribunal’s decision and effectively held that the test was akin to Wednesbury unreasonableness (at [130]). The approach of Crennan and Bell JJ reflects that of Dixon CJ, Williams, Webb and Fullagar JJ in the Melbourne Stevedoring case,[10] as well as established statements of the scope for judicial review in cases such as the present one (which speak of an opinion that no reasonable decision maker could have formed)[11]. In my view and consistently with the Minister’s submissions, this is the correct approach.
[8] (2010) 266 ALR 367; [2010] HCA 16
[9] without expressing a view on the issue of general principle
[10] R v Australian Stevedoring Industry Board; Ex part Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100, 117.5, 119.8-120.3, 121.7
[11] R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407, 430.7; Buck v Bavone (1976) 135 CLR 110, 118.9; Parramatta City Council v Pestell (1972) 128 CLR 305, 314.5, 327.9, 332.5
On this basis, the position remains that in order to succeed on this ground of review the applicants have to establish Wednesbury unreasonableness. As the third Tribunal’s decision was clearly open on the evidence, there is no Wednesbury unreasonableness.
In any event, contrary to the particulars given to this ground of review, the third Tribunal took into account that someone allegedly at the fish farm had initially answered the telephone (CB 294 [104]) but given that person had given no real information and asked the caller to call back at lunchtime and then not answered the phone, the third Tribunal was entitled to find that the attempts to contact the fish farm were unsuccessful. The third Tribunal’s rejection of the first applicant’s explanation for the adverse information in the DFAT report was open to it on the evidence before it given the other problems with the first applicant’s evidence.
Conclusion
In my view, the applicants’ submissions concerning the significance of the fact that someone answered the phone at the fish farm purportedly on behalf of the fish farm cavils with the merits of the Tribunal decision. The Tribunal might have concluded, as the first applicant contended before the Tribunal, that the fish farm was continuing to operate illegally through bribery of officials. However, it was open to the Tribunal to make the finding it did on the material before it. The decision, in that regard, was neither illogical nor unreasonable nor wholly supported by the evidence. Further, the factual finding made by the Tribunal that the fish farm failed in 2006 was not central to the outcome of the review. The critical factual issue was not whether the farm continued to operate or not, but whether the applicant told the truth in relation to his claims of harm as a consequence of his alleged involvement in anti-Communist and anti-government activities. The applicants’ claims in that regard were rejected by the Tribunal and the Tribunal was entitled to find as it did.
I find that the decision of the Tribunal is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
The closing submissions of the second applicant were distressing for the first applicant and he left the court room during that period. The continuing absence of the applicants from China is distressing both to them and to their families in China. It is particularly distressing that aged parents do not have the comfort of the presence and support of their children during their final years. It may be, as is implicit in the decision of the Tribunal, that it was economic distress that led the first applicant to come to Australia rather than a well-founded fear of persecution. Whether that was the case or not, the applicants need to consider now whether they would be better off returning to China to be with their relatives rather than continuing to contest Tribunal decisions concerning the first applicant’s protection visa claims. That is a matter for them.
I will hear the parties as to costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 26 August 2010
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