SZLPF v Minister for Immigration
[2008] FMCA 614
•30 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLPF v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 614 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZLPF”. |
| Migration Act 1958 (Cth), ss.91X, 91R(3), 424A |
| Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126 Liversey v New South Wales Bar Association (1983) 151 CLR 288 Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 Minister for Immigration & Multicultural Affairs v Jiah (2001) 205 CLR 507 Minister for Immigration & Multicultural Affairs v W64/01A [2003] FCAFC 12 NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Re Minister for Immigration & Multicultural Affairs; ex parte Applicant Refugee Review Tribunal re; ex parte H (2001) 75 ALJR 982 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 S20/2002; Appellant S106/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 30 Tin Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988 VAF v Minister for Multicultural & Indigenous Affairs [2004] FCAFC 123 WABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286 Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885 |
| Applicant: | SZLPF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3418 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 24 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 30 May 2008 |
REPRESENTATION
| Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter. |
| Solicitors for the Respondents: | Ms M Mafessanti (Clayton Utz) |
ORDERS
The application filed on 2 November 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3418 of 2007
| SZLPF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
The applicant was born on 18 March 1973 in Fuqing, the Peoples’ Republic of China (PRC). He states in his application that he was educated between 1981-1992 in Lontian Town, Fuqing City. The applicant claims that he has a spouse and two children. He claims that he worked as a building worker with “No 2 Building Co Ltd” from August 1992 – December 1994 and from January 1995 to October 2006 he was the proprietor of a small business shop which sells second hand furniture, electrical appliances and office furniture.
In the applicant’s statement attached to his Protection (Class XA) visa application form, the applicant makes the following claims:
·The applicant commenced as a small business man in 1995, the first two years of which were stressful;
·The applicant was introduced to Christianity by Mr Lim and attended underground churches and bible study groups;
·The applicant was baptized on Christmas Day in 1998;
·The applicant began organising bible study groups from 2003 onwards;
·In August 2006, the applicant was arrested and cross-examined as to the whereabouts of Mr Lin to which the applicant advised that he had no knowledge of who Mr Lin was;
·The applicant was held and interrogated for three days by the police until released by a friend’s contact in the Longtian police station;
·In October 2006, the applicant went to FuQuing for stockpile and was advised by a relative that he would be arrested soon and to leave Longtian town;
·Around this time, the applicant’s family called to advise him that he was in danger and consequently went into hiding; and
·The applicant departed Baiyun Airport on 6 February 2007 as a result of an agreement with a contact of the applicant’s family in return for 200,000 Yuan.
The applicant arrived in Australia on 7 February 2007 and applied for a Protection visa on 23 March 2007. A delegate of the first respondent refused to grant such a visa and the applicant applied to the Refugee Review Tribunal (“Tribunal”) on 20 June 2007. The Tribunal affirmed the delegate’s decision not to grant a protection visa (RRT case number 071511369) which is the subject of these proceedings.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A” and is the only evidence before the Court.
At the first court date directions hearing the applicant indicated to the Court that he wished to participate in the scheme that gives unrepresented applicants in refugee matters an opportunity to receive independent legal advice on the prospects of success of their appeal. The applicant was allocated a panel advisor and the court file indicates that advice was prepared and provided to the applicant. The applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon by 5 February 2008. The applicant failed to comply with this order. Furthermore, an order was made that the applicant provide a short written outline of submissions and a list of authorities fourteen days prior to the hearing. This order was not complied with.
Tribunal decision
The Tribunal found that the applicant was not a credible witness as a result of a number of contradictions and inconsistencies between his Protection visa application statement, his evidence at the departmental interview and his oral evidence delivered at the hearing of the Tribunal on 1 August 2007. These contradictions and inconsistencies are contained in the “Findings and Reasons” at paragraphs [72]-[76] and paragraphs [81]-[83] (CB 95-97). The Tribunal found that the applicant’s claims lacked credibility [83] and that there was no plausible evidence to support the applicant’s claims [86] (CB 97-98).
The applicant’s major claim concerned his involvement in Christianity. The Tribunal formed the view that:
a)Although the applicant displayed a certain knowledge of Christian beliefs it was not satisfied that the applicant was a member of an underground church or that he was persecuted for the reason of being an alleged member [77] (CB 96). The Tribunal formed this view based on contradictions and inconsistencies concerning:
i)the applicant’s alleged role in the organisation of the Bible study group [74] (CB 95); and
ii)the problems the applicant encountered with the Chinese authorities in relation to his membership of an underground Christian church [75] (CB 95).
b)In his statement he claims that he was arrested in 2006 and questioned about his relationship with Mr Lim and the names of other members of the underground church in Longtian village. However, at the hearing he indicated that the police did not question him about his religion [76] (CB 96).
c)The applicant was not a truthful witness and his statements provided to the Department and the Tribunal lacked credibility. The Tribunal found that the applicant only attended church in Australia in order to strengthen his refugee claims. Therefore, pursuant to s.91R(3) of the Act the Tribunal disregarded the applicant’s claims of attending a church in Hurstville [85](CB 97).
The Tribunal was not satisfied that the applicant was involved with Mr Lin, an alleged Taiwanese spy or that the applicant provided Mr Lin with “waste paper bearing government stamps” (CB 96) because:
a)There was no mention that Chinese authorities considered Mr Lin to be a Taiwanese spy or that he was wanted because he sold Mr Lin “waste paper bearing government stamps” [60] (CB 90), [78] (CB 96); and
b)There were several inconsistencies in relation to Mr Lin’s arrest, how the applicant was arrested and how the applicant was made aware of Mr Lin’s arrest [49]-[51](CB 88), [79] (CB 96).
The Tribunal was not satisfied that the applicant had a well founded fear of persecution by reason of his religious or political beliefs or for any other Convention reason, if he were to return to China [84](CB 97 ).
Consideration
Ground one
The RRT breached the rules of procedural fairness by failing to give the applicant an opportunity to comment on information, which the RRT relied on. Therefore the RRT failed to comply with s.424A of the Migration Act.
When the applicant was invited to make oral submissions he indicated that the Tribunal did not deal with his application according to procedural fairness. The applicant did not develop his point any further other than to state that he disagreed with the Tribunal’s decision and that it had failed to deal with his claims in accordance with the provisions of the Act.
This ground alleges a breach of s.424A of the Act because the Tribunal failed to give the applicant an opportunity to comment on information that it relied upon. However, the Tribunal fowarded to the applicant an “Invitation to Comment on Information” letter on 3 August 2007 in accordance with the provisions of s.424A of the Act. The letter invited the applicant to comment on numerous inconsistencies between his Protection visa application statement, his evidence at the Departmental review and his evidence given at the Tribunal hearing on 1 August 2007 (CB 72-75). The s.424A letter addresses the inconsistencies in the applicant’s evidence which the Tribunal ultimately relied upon in reaching its decision of adverse credibility finding [73](CB 95); [76](CB 96); [78]-[89] (CB 96); [81]-[83]) (CB 97).
The “Invitation to Comment on Information” letter required the applicant to respond by 28 August 2007 and indicated that if a response could not be prepared within the timeframe the applicant should request an extension of time in which to provide the comments. However, that extension would need to be received by the Tribunal prior to 28 August 2007. No response or request for extension was received.
I agree with Ms Mafessanti, who states in her written submissions that the Tribunal’s independent thought process regarding the inconsistencies in the applicant’s evidence do not constitute “information” within the meaning of s.424A(1) of the Act: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18].
The Court does not have the benefit of a transcript of the Tribunal hearing and must rely on the contents of the decision. In the “Findings and Reasons” the Tribunal sets out each of the inconsistencies and contradictions that were put to the applicant in the s.424A letter. No response was provided by the applicant within the time provided. In these circumstances the Tribunal came to the following conclusion:
83. On the above evidence and for the above reasons the Tribunal finds that the applicant is not a truthful witness and his statements both to the Department and to the Tribunal lack credibility. Also for the above reasons and as the Tribunal has found that the applicant is not credible the Tribunal also finds the applicant: was not a member of an underground church; was not involved with Mr Lin in religious activities; was not involved with Mr Lin who was or was claimed to be a Taiwanese spy by Chinese authorities; did not provide ‘waste paper’ with government stamps to Mr Lin; was not warned by Chinese authorities not to go to Bible study meetings: was not advised by Chinese authorities to attend ‘big church’; was not arrested in August 2006; his shop was not searched and closed by the peace at the end of October 2006; and he did not go into hiding at the end of October 2006 (CB 97).
In SZBYR the High Court cited with approval the decision in VAF v Minister for Multicultural & Indigenous Affairs [2004] FCAFC 123 at [18] that the word “information”
does not encompass the tribunal’s subjective appraisals, thought processes or determinations…nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
As set out in the decision record the Tribunal’s findings were ultimately based on the applicant’s lack of credibility. An adverse credibility finding and consequent rejection of an applicant’s claim is a matter for the Tribunal: Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1. I am satisfied that the Tribunal’s findings were based on rational grounds and the material before it discloses no error in its treatment of the applicant’s credibility: Kapalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126. In the circumstances ground one cannot be sustained and should be dismissed.
Ground two
2. The RRT failed to take all relevant information into consideration when applying a real chance test in determining whether the applicant will be persecuted by the Chinese government or the local authority in his hometown if he returns to China.
This ground is not particularised and reference to “relevant information” is not identified by the applicant. Attached to his Protection visa application is a statement in English briefly setting out his claims (CB 27-28). Attached to his application for review before the Tribunal is a typed copy of the statement in Mandarin. It is not a literal translation but is substantially the same as the English version as attached to the original visa application. This is confirmed by the Tribunal in the decision under the sub-heading “Claims and Evidence” where the Tribunal states:
24. On 20 June 2007 an application for review was lodged with the Tribunal. Provided with the application for review was a statement of the applicant dated 18 June 2007 which was in Chinese. The applicant read the statement at the hearing and it was interpreted. He also made some handwritten amendments to the statement. At the hearing the applicant confirmed that the statement in Chinese provided to the Tribunal was similar to the statement in English provided to the Department. He stated that he told his agent his story and his agent typed out his story and had it translated, therefore, the Tribunal will refer to both versions as “the statement”. (CB 83)
The applicant did not submit any other material to the Tribunal for consideration. The only other material was the oral evidence provided during the hearing. As indicated above there is no transcript of the hearing before the Court so the material is limited to what appears in the Court Book and in the decision record. Ms Mafessanti submitted that a fair reading of the Tribunal’s decision indicates that the Tribunal had regard to the applicant’s statements and undertook a detailed examination of all the applicant’s claims and evidence. The Tribunal affirmed the decision under review because it simply did not find that the applicant was credible. The adverse credibility finding made by the Tribunal was based on rational grounds and arrived at after consideration of matters that were logically probative to the issue of credibility: NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 per Moore, Tamberlin and Allsop JJ at [115]:
[115] By and large fact-finding is a task within jurisdiction, though factual error is not necessarily mutually exclusive of jurisdictional error: Re Minister for Immigration and Multicultural Affairs: Ex parte Applicant S 20/2002 (2003) 198 ALR 59. Where fact-finding has been conducted in a manner which can be described, as here, as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way, these considerations may found a conclusion that the posited fair-minded observer might, or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly. How else, the fair-minded observer might ask, can one explain the largely unreasoned rejection of documents as vague, when they plainly were not, and as not saying the appellants were Catholics, when expressly or impliedly they did?; and how does one explain not dealing with answers which revealed an apparently detailed knowledge of the Christian religion and the Catholic faith, when a conclusion is drawn that persons are not Christian based on weighing some answers to questions of less than central importance? The answer to these questions might be that the Tribunal lacked an appreciation of the need to weigh all the material. If that were the case it would itself support a conclusion of jurisdictional error. The answer might also be the lack of an ability or willingness to deal with the material before it with a mind open to persuasion fairly evaluating all the material.
It is submitted that to the extent that this ground challenges the Tribunal’s findings, it does no more than reflect the applicant’s dissatisfaction with the Tribunal’s decision in this matter. That is not a basis for review on a ground which founds jurisdictional error. Findings as to the weight are to be accorded to evidence strictly within the jurisdiction of the Tribunal and cannot be challenged by the applicant.
The applicant claims that the error in relation to the “real chance” test was twofold. Firstly, the Tribunal did not look at whether there was a real chance of persecution in the reasonably foreseeable future and that even if it did, it failed to apply the test correctly, particularly the requirement that a “real chance” is one that is not remote or insubstantial or a far fetched possibility. The Tribunal correctly referred to the test to determine a well founded fear in the introduction to its statement of reasons under the sub-heading “Definition of Refugee”. However, this test follows that it cannot be concluded that fear was not well founded based on mere assumptions or speculations.
It was necessary for the Tribunal to consider whether there was a “real chance” that the environmental circumstances central to the ‘claimed’ incidents would prevail in the reasonably foreseeable future. The Tribunal was obliged to make an assessment of the circumstances in China in the reasonably foreseeable future: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [13] and Minister for Immigration & Multicultural Affairs v W64/01A [2003] FCAFC 12 at [37]. Although it is not stated or claimed by the applicant, it can be implied that the Tribunal found that there was no real chance that the Chinese government or the local authorities in his home town would persecute him if he returned to China. I find it difficult to infer that the Tribunal misapplied the “real chance” test and the findings made by the Tribunal were based on the limited material before it and open to it: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321. The findings were not perverse: Re Minister for Immigration & Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30 and an assessment of the probability of future persecution provided the finding that the Tribunal was not required to do anything further: Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 197 CLR 559 per Brennan CJ, Dawson, Toohey, Gummow, McHugh JJ at [577].
In the circumstances ground two cannot be sustained and should be dismissed.
Ground three
The RRT rejection of my refugee claims is unreasonable and has been affected by prejudgment. I was an underground Christian when I was in China. I have experienced persecution and mistreatment to the Chinese government.
Actual bias exists where the Tribunal member had a pre-existing state of mind which disabled him/her from undertaking or rendering him/her unwilling to undertake any proper evaluation of the relevant material before him/her which were relevant to the decision to be made: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at [35] and [72]. Actual bias exists where the Tribunal member is so committed to a conclusion already formed as to be incapable of alteration whatever evidence or argument may be presented: Jiah at [71]-[72].
A party alleging actual bias on a decision maker’s party carries a heavy onus and it must be clearly proved: Jia. The existence of actual bias may be inferred from facts and circumstances but caution should be exercised, in the absence of evidence of partisanship or hostility, before inferring actual bias from factual errors or faulty reasoning on the part of the Tribunal member: Tin Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988 at [27]; Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885 at [36]. A case of actual bias is seldom made out by reference solely in relation to reasons for the decision and no inference of bias or prejudgment can be drawn from the mere fact of adverse findings in the Tribunal’s reasons: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 at [21]; SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 per Tamberlin, Mansfield and Jacobson JJ at [16]; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286 at [3].
Alternatively if the applicant is attempting to allege apprehended bias this will exist where a fair minded lay observer, who is properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal would apprehend that the Tribunal member might not bring an impartial mind to resolution of the question to be decided: Refugee Review Tribunal, re; ex parte H (2001) 75 ALJR 982 at [27]; Liversey v New South Wales Bar Association (1983) 151 CLR 288 at [293]-[294].
Ms Mafessanti in her written submissions submits that there is nothing on the face of the Tribunal decision record which gives rise to any reasonable apprehension that the Tribunal did not bring an impartial mind to bear on the decision; NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 214 ALR 264 at [14]. In the absence of any particulars or any attempt to provide this Court with the evidence of the alleged bias it is not apparent from the decision record that actual or apprehended bias existed on the part of the decision maker.
It is understandable that the applicant is disappointed with the outcome of the Tribunal’s decision in that his application for a Protection visa has been rejected but there is nothing to indicate that the Tribunal member has not considered all of the material put forward by the applicant in assessing his claims. The ultimate decision was that the Tribunal member did not find the applicant to be credible and the reasons for that decision are clearly stated in the “Findings and Reasons”. In the circumstances ground three cannot be sustained.
Conclusion
The applicant appears in this Court as a self-represented litigant with the assistance of a Mandarin interpreter. The applicant has relied on an unidentified third party to prepare his application and it is apparent that the applicant Ms Maffassanti appearing for the respondents assisted the Court with detailed written submissions. I am satisfied that none of the grounds pleaded in the application can be sustained. Neither is it apparent that any other grounds of review exist which suggest that the Tribunal member has made a jurisdictional error in its decision to reject the applicant’s application for a Protection visa. The applicant’s claims should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 30 May 2008
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