SZLMJ v Minister for Immigration - [2008] FMCA 547

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLMJ v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 547

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal was biased – whether the Refugee Review Tribunal failed to ensure the applicant was on notice of determinative adverse issues – whether the Refugee Review Tribunal had regard to all evidence – whether the Refugee Review Tribunal complied with s.425 of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal complied with s.424A 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); 424AA; 425; 474; pt.8 div.2

SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
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
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 162 ALR 1
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26

Applicant:

SZLMJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 3189 of 2007

Judgment of:

Emmett FM

Hearing date:

10 April 2008

Date of last submission:

10 April 2008

Delivered at:

Sydney

Delivered on:

1 May 2008

REPRESENTATION

Applicant appearing on his own behalf

Counsel for the Respondent:

Mr S. Lloyd

Solicitors for the Respondent:

Ms B. Griffin, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3189 of 2007

SZLMJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

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 (“the Tribunal”) dated 6 September 2007 and handed down on 18 September 2007.
The Applicant claims to be from the People’s Republic of China (“the PRC”) and to have a fear of persecution from the authorities in the PRC by reason of his political opinion.
The Applicant arrived in Australia on 1 March 2007 having departed legally from Xiamen Gaoqi International Airport on a passport issued in his own name and a subclass 456 visa issued on 14 February 2007.
On 4 April 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant claimed that he feared persecution by the Chinese authorities including the Public Security Bureau (“the PSB”) for his involvement in the production and distribution of anti-government pamphlets in December 2006 and January 2007 following the alleged torturing to death of his close friend and customer, Mr C-, on 23 January 2006. The Applicant claimed that he had been questioned three times and detained for a week in January 2007. The Applicant claimed that in February 2007 two friends had been arrested following which the Applicant fled to Xiamen, went into hiding and arranged his travel to Australia.
On 31 May 2007, 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”).
On 31 May 2007, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further written material in support of the review application. On 6 September 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 15 October 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 18 June 2007, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone and invited the Applicant to attend a hearing on 12 July 2007 to give oral evidence and present arguments. The Applicant attended that hearing and gave oral evidence.
On 12 July 2007, the Applicant gave oral evidence before the Tribunal in which the Applicant expanded upon his written claims.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal found the Applicant was not a witness of truth.
The Tribunal noted in its decision record the Applicant’s claims made in support of his protection visa application and summarised the oral evidence given by him at the hearing before the Tribunal on 12 July 2007. The Tribunal noted exchanges it had with the Applicant about his claims and noted matters of concern that it put to the Applicant arising from his evidence.
Ultimately, the Tribunal found that the Applicant had fabricated all his claims based on his “changing and evolving evidence and inconsistencies in evidence.” The Tribunal identified those inconsistencies and changes in evidence that led it to conclude that the Applicant’s claims were fabricated.
The Tribunal noted that it had considered the Applicant’s evidence cumulatively and found that “the applicant has fabricated the story for the purposes of claiming refugee status.” The Tribunal comprehensively rejected all claims made by the Applicant and found that the PSB or any Chinese authorities did not presently have any interest in the Applicant because of any political or imputed political opinion or membership of a particular social group. The Tribunal noted those were the only Convention related reasons upon which the Applicant claimed to fear persecution. The Tribunal concluded that the Applicant did not face a real chance of persecution for “any reason”.
The Tribunal affirmed the decision under review

The proceeding before this Court

The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter. The Applicant participated in the panel advice scheme.
The Applicant confirmed that he relied on the grounds identified in the application filed on 15 October 2007.

Ground 1 – “The Tribunal made its finding unfairly based on its assumption with bias.”

In support of the allegations of bias the application identified in its particulars findings by the Tribunal with which it did not agree.
The Applicant made oral submissions in support of ground 1 in which he referred to each of the particulars identified. The particulars are as follows:
“a. In relation to the issue how I located Ke Jia Shi, the Tribunal did not ask me about “…why local farmers would come into contact with chicken farmers hundreds of kilometres away in another province…”. However, it was not unusual actually because of products in my feed processing factory with high quality and cheap prices.
b. In relation to the issue why Mr.Ke Jia Shi, a former PSB officer, “who had participated in a torture and murder of a detainee and who had left the province as result, would then confess ‘in secret’ to a stronger(sic), a friend or victim, who had tracked him down from hundreds of kilometres away…”, the Tribunal did not give me a fair chance to explain how I made Mr.Shi to do so or why Mr.Shi did so for me. Also, the Tribunal failed to consider the important evidence that Mr.Shi himself has been shamed of being a police under the Communist dictatorship. In other words, Mr.Shi himself was of a strong political view against the Communist dictatorship and particularly he wanted to separate him from those cruel polices(sic) who had killed my friend.
c. In relation to the issue “…why the police did not search my home to seek evidence…”, the Tribunal failed to consider that the police should have a search permit issued by the procurators. Actually, I was not the only one who had been suspected to get involvement in distributing anti-government materials; and it was definitely implausible that the police had searched every suspicion’s(sic) home. Particularly, the police did not have any evidences against me at that time.
d. In relation to the issue about my passport, the Tribunal failed to ask me to explain “… why the PSB failed to ask…” for my passport if I “…remained a suspect in the matter…”. As a matter of fact, holding a passport is quite common in China right now; and in my hometown, most of people, especially the ones like me who had run businesses, hold the passport.”
Each of particulars 1(a), 1(b), 1(c) and 1(d) accord with the four “implausibilities in the applicant’s story” identified by the Tribunal in its reasons as follows:
“The Tribunal considers there are implausibilities in the applicant’s story, although they do not lead the Tribunal to a conclusion of their own:
·    The applicant claimed he was able to discover the truth about Mr Chen’s death on 23 January 2006 at the hand of the Honglu PSB through asking questions of Mr Shu Ren Wei, a former worker at the hospital mortuary; Ms Li Zhen Ding, a former hospital nurse; and then Mr Ke Jia Shi, a former PSB official. At the hearing he claimed he had located Mr Ke Jia Shi in November 2006 in Jiangxi province, and that Mr Ke Jia Shi had moved from Honglu because of the incident. The applicant stated it was a few hundred kilometres away. When the Tribunal asked him how he came across Mr Ke Jia Shi he stated chicken farmers came to his chicken feed factory and spoke about Mr Ke Jia Shi’s past employment with the PSB. However, the applicant’s explanation did not explain why local farmers would come into contact with chicken farmers hundreds of kilometres away in another province.
·    At the hearing the applicant claimed that he tracked down Mr Ke Jia Shi, a former PSB officer, who then confessed to assisting in Mr Chen’s torture and murder. However, it is implausible that a former PSB employee who had participated in a torture and murder of a detainee, and who had left the province as a result, would then confess ‘in secret’ to a stranger, a friend of the victim, who had tracked him down from hundreds of kilometres away.
·    At the hearing the applicant claimed that in December 2006 and January 2007 he organised pamphlets to be distributed which exposed Mr Chen’s murder by the PSB. He claimed this led to him being questioned by the PSB on 3 January 2007, questioned a further 2 times, and then detained from 15 to 22 January 2007. He stated he was released as the PSB had no evidence. Later in the hearing he stated the PSB first searched his home on 23 or 24 February 2007. The applicant’s later explanation that the PSB failed to search his home in January 2007 because there was no evidence against him, did not explain why they did not search his home to seek evidence. It is implausible that the PSB questioned him on 3 occasions and even detained him fro a week in January 2007, but nonetheless failed at that time to search his home for evidence concerning the pamphlets.
·    At the hearing the applicant claimed that after his detention in January 2007 the PSB asked him not to leave home. Later, the Tribunal asked whether the PSB had asked him for his passport and he stated the PSB had not asked for his passport. His explanation that they knew he was a businessman with a factory did not explain why the PSB failed to ask for his passport if, as he claims, he remained a suspect in the matter. It is implausible that a main suspect of the PSB who had been told not to leave home, was not even asked about his passport.”
Particulars 1(a), 1(b), 1(c) and 1(d) appear to be an attempt by the applicant to answer the concerns expressed by the Tribunal about certain aspects of the Applicant’s evidence referred to in paragraph 26 above in these Reasons.
In relation to grounds 1(a) and 1(b), the First Respondent conceded that the matters referred to in grounds 1(a) and 1(b) were not put directly by the Tribunal to the Applicant during the course of its hearing.
The High Court made clear in SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63 that the Tribunal is obliged to ensure that issues that may be central and determinative to the review and are not otherwise obviously open on the known material, are required to be put by the decision maker to a party if the decision maker is intending to make an adverse finding in respect of those issues.
The First Respondent submitted that the issues referred to in grounds 1(a) and 1(b) were not critical and did not of themselves lead the Tribunal to its finding that the Applicant had fabricated his claims.
The First Respondent submitted that the implausibility findings made by the Tribunal were not central and determinative to the Tribunal’s decision.
Certainly, the Tribunal prefaced its implausibility findings with the statement that they did not on their own lead the Tribunal to find that the Applicant had fabricated his story for the purpose of claiming refugee status.
A fair reading of the Tribunal’s decision makes clear that the Tribunal did not rely on the implausibilities in the Applicant’s evidence as the reason for its adverse findings.
A fair reading of the Tribunal’s reasons makes clear that the Tribunal identified carefully those matters that led it to conclude that the Applicant’s evidence was fabricated.
In the circumstances, the Tribunal did not act contrary to the principles enunciated in SZBEL in not raising with the Applicant directly the “issues” referred to in grounds 1(a) and 1(b).
In relation to particulars 1(c) and (d), I refer to paragraphs 29 to 34 above in these Reasons.
Moreover, a fair reading of the Tribunal’s decision makes clear that the Tribunal put the matters referred to in ground 1(c) and 1(d) to the Applicant as “very odd” during the hearing. The Tribunal noted the Applicant’s responses.
At the heart of the Tribunal’s rejection of the Applicant’s evidence, was the Tribunal’s conclusion that the Applicant’s “story was a fabrication” based on “the applicant’s changing evidence and inconsistencies in evidence at the hearing.” A fair reading of the Tribunal’s decision makes clear that the Tribunal was careful to identify those inconsistencies and changes in evidence at the hearing as the reason for its adverse findings.
A fair reading of the Tribunal’s reasons makes clear that the “implausibilities in the applicant’s story” were not sufficient on their own to lead the Tribunal to make adverse conclusions.
The Tribunal identified with great specificity the particular parts of the Applicant’s evidence about which it had concern and which formed part of its reasons for finding that the Applicant’s story was fabricated.
It is for the Tribunal to consider and evaluate the evidence before it (Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 41 per Mason J). The Tribunal made findings that were open to it on the evidence and material before it and for which it provided reasons, including its adverse credibility findings. Credibility findings are a matter “par excellence” for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
The First Respondent referred the Court to NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 (“NAOA”) in which the Full Court of the Federal Court stated the following at [21]:
“In the absence of evidence about what occurred at the hearing, the appellant has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice.”
The Applicant also relied on the Tribunal’s implausibility findings in support of a contention that the Tribunal was biased against him because it “ignored important evidence” and did not give him a chance to explain his story.
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; had regard to all material provided in support; and, made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal 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 reached conclusions based on the findings made by it and applied the correct law in reaching those conclusions.
A fair reading of the Tribunal’s decision does not support the Applicant’s contention that the Tribunal ignored important evidence
To the extent that ground 1 alleges bias by the Tribunal against the Applicant, such a claim is serious and requires evidence, such as a transcript of the Tribunal hearing (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668).
The allegation of bias is not supported by any evidence, such as a transcript of the hearing before the Tribunal. The Applicant attended a directions hearing before this Court on 1 November 2007 when he was directed to file and serve any additional evidence, including any transcript of a Tribunal hearing by 7 January 2008. At the commencement of the hearing before this Court, the Applicant confirmed that he had not filed any further evidence in support of his application to this Court.
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]).
Accordingly, the allegation of bias or apprehended bias is rejected.
In the circumstances, a fair reading of the Tribunal’s decision does not support the Applicant’s contention that he was denied natural justice or that the Tribunal was biased.
Accordingly, ground 1 is not made out.

Ground 2 – “The Tribunal failed to consider my evidences properly.”

In support of ground 2, the Applicant identified seven particulars which can be accurately summarised as follows:
i)The Tribunal put unclear questions to the Applicant;
ii)The Tribunal had “no basic knowledge about strict monitoring system under the Communist dictatorship”; and,
iii)The Tribunal misstated the Applicant’s evidence.
As referred to in ground 1 above in these Reasons, the Applicant did not provide any evidence in support of his application to this Court.
In relation to i) above, the Applicant contended that the Tribunal’s questions were unclear. Such an allegation would require at least a transcript of the hearing before the Tribunal.
A fair reading of the Tribunal’s decision discloses questions asked by the Tribunal and responses made by the Applicant. There is no suggestion in the Tribunal’s decision record that the Applicant had any difficulty in understanding his questions or that the Applicant was unable to make meaningful responses. The fact that the Tribunal did not ultimately make findings in accordance with the Applicant’s evidence does not support the Applicant’s complaint that the Tribunal asked “unclear questions.”
In relation to ii) above, the Applicant alleged that “the Tribunal has, apparently, no basic knowledge about strict monitoring system under the Communist dictatorship”. Such an allegation does not disclose any error capable of review by this Court. Whether the Tribunal has basic knowledge about various matters is not a complaint capable of supporting a contention of jurisdictional error on the part of the Tribunal. As stated above in these Reasons, the Tribunal made findings that were open to it on the evidence and material before it and for which it provided reasons.
In relation to iii) above, the Applicant contended that the Tribunal misstated his evidence. However, a fair reading of the Tribunal’s decision does not support such a contention.
As stated above in these Reasons, there is no evidence provided by the Applicant to support such a contention. Plainly such a contention would require at least a transcript of the hearing of the Tribunal, together with evidence of what the Applicant would submit is the accurate translation of what he said. In the absence of evidence by the Applicant, the Court is left with the Tribunal’s decision record. As stated above in these Reasons, a fair reading of the Tribunal’s reasons does not support the Applicant’s contention that the Tribunal misstated his evidence.
Otherwise, ground 2 is no more than the Applicant’s disagreement with the findings of the Tribunal. Such a complaint invites merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1).
Accordingly, ground 2 is not made out.

Ground 3 – “The Tribunal failed to comply with its obligations under s.425 of the Act.”

Ground 3 was supported by the particular that the Tribunal failed to provide to the Applicant “genuine opportunities to explain my claims… and to present my arguments against the issues arising from the review.”
The complaints in this ground are largely dealt with in grounds 1 and 2 above. A fair reading of the Tribunal’s decision does not support the Applicant’s contention that the Tribunal failed to give him a genuine opportunity to explain his claims and present arguments. The Applicant was invited to and attended a hearing before the Tribunal where he gave oral evidence. As stated above in these Reasons, the Tribunal identified with great particularity evidence given by the Applicant at the hearing and noted various exchanges it had with the Applicant and the Applicant’s responses.
In the circumstances, ground 3 is not made out on the face of the Tribunal’s decision record (see NAOA).
Accordingly, ground 3 is not made out.

Ground 4 – “The Tribunal failed to comply with its obligations under 424A(1) of the Act.”

The Applicant did not provide any meaningful particulars in support of ground 4. The Applicant submitted orally to this Court that s.424A obliged the Tribunal:
i)to provide him with its reasons for rejecting his evidence;
ii)to allow him to comment on matters during the hearing; and
iii)to give him an opportunity to provide a written letter in reply and seek time to respond.
In relation to i) above, a fair reading of the Tribunal’s decision record does not suggest that there was any information that was part of the reason for the Tribunal affirming the decision under review that enlivened the obligations of s.424A(1) of the Act.
As stated above in these Reasons, the Tribunal made clear that the reasons why it concluded the Applicant had fabricated his claims was because of “the applicant’s changing evidence and inconsistencies in evidence at the hearing.”
The Applicant’s changes in evidence and inconsistencies are not information that enlivens the Tribunal’s obligations under s.424A(1) of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]).
In relation to ii) and iii) above, the Applicant seems to be referring obliquely to s.424AA of the Act. However, I note that s.424AA of the Act did not come into force until 29 June 2007 and applied only to applications for review filed after that date. The Applicant’s application for review in this matter was lodged on 31 May 2007.
As stated above in these Reasons, the findings and conclusions made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons. The Tribunal applied the correct law to its findings in concluding that the Applicant did not face a real chance of persecution if he were to return to the PRC “for any reason.”
There was no failure by the Tribunal to comply with its duties under s.424A(1) of the Act.
Accordingly, ground 4 is not made out.

Ground 5 – “In summary, I have never agreed that my application has been assessed by the Tribunal fairly and carefully.”

Ground 5 is not supported by any particulars or evidence. Further, the Applicant made no submission in respect of ground 5 alone. I understand that ground 5 is more in the nature of a summary by the Applicant of his complaints as reflected in grounds 1 to 4.
For the reasons referred to in grounds 1 to 4 above, a fair reading of the Tribunal’s decision does not support the Applicant’s contention that his review application was not assessed by the Tribunal “fairly and carefully”.
According, ground 5 is rejected.

Conclusion

In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
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 seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 1 May 2008