SZLPT v Minister for Immigration

[2008] FMCA 712

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLPT v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 712

MIGRATION – Review of the decision of the Refugee Review Tribunal – adverse credibility finding – no failure pursuant to s.424A(1) – no failure to consider claims – impermissible merits review – no bias – no apprehended bias – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.424A, 422B, Division 4 of Part 7

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA
SZHPD v Minister for Immigration and Citizenship [2007] FCA 157
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
Re MIMA; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35

Applicant: SZLPT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3485 of 2007

Judgment of: Nicholls FM

Hearing date: 15 May 2008

Date of Last Submission: 15 May 2008

Delivered at: Sydney

Delivered on: 15 May 2008

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Appearance for the Respondents: Ms B Griffin

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 9 November 2007 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $3,100.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3485 of 2007

SZLPT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application made in this Court on 9 November 2007 under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 28 September 2007, and handed down on 16 October 2007, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. The first respondent has filed a bundle of relevant documents in these proceedings (the Court Book – “CB”) from which the following background may be discerned.

2. The applicant is a citizen of the People’s Republic of China who arrived in Australia on 7 February 2007 and applied for a protection visa in March 2007.  That application is reproduced at CB 1 to CB 32, and I note in particular that the applicant’s claims to protection were set out in a statement reproduced at CB 28 to CB 30.

3. When this application was refused (and I note the delegate’s decision record and letter of notification is reproduced at CB 33 to CB 41) the applicant applied for review to the Tribunal on 28 June 2007.  This application is reproduced at CB 42 to CB 45.  I note that both before the first respondent’s Department and the Tribunal, the applicant was assisted by a migration agent (CB 11 and CB 43).

4. The applicant was invited to a hearing before the Tribunal and attended the hearing on 17 September 2007 (CB 52).  I note that the applicant was assisted by an interpreter in the Mandarin language on that occasion; his representative did not attend the hearing.  The Tribunal’s account of what occurred at the hearing is set out in its decision record at CB 61 to CB 62.

5. The Tribunal accepted that the applicant worked as a taxi driver in his town in China.  It found the applicant, however, to be “an unimpressive witness” (CB 62.9), and based this on its evaluation of the applicant and the evidence that he gave at the hearing before it. The Tribunal found that key aspects of the applicant’s claims were “vague and lacking in detail”. In its decision record, and in particular at CB 63, the Tribunal set out six instances of where it found the applicant’s claims lacked detail.

6. As a result, the Tribunal did not accept that the applicant was a credible witness, and did not accept that he was telling the truth about “events leading up to his departure from China”. As a result, the Tribunal did not accept individual aspects of the applicant’s claims that he was involved in organising and participating in a group of taxi drivers who protested against government policies. Nor that he was detained and harmed by authorities, nor that he was of adverse interest to authorities. It did not accept that the applicant would be arrested if he returned to China for reason of his political opinion or because he breached the conditions of his release from detention. The Tribunal did not accept that the applicant was involved in organising anti-government protests in the past in China, nor that there was a real chance that he would become involved in organising such protests if he were to return.

7. In all, the Tribunal found the applicant did not have a well-founded fear of persecution for any Refugees Convention reason and found that it was not satisfied that the applicant was a person to whom Australia owed protection obligations. It therefore affirmed the delegate’s decision the subject of the review.

Application to the Court

1. The application that the applicant has put before the Court states the following grounds:

   “1.The RRT breached the rules of procedure of fairness by failing to give me an opportunity to comment on information which the RRT relied on. Therefore the RRT failed to comply with S4242A of the Migration Act.

   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.

   3.The RRT rejection of the applicant’s refugee claims is unreasonable and has been affected by prejudgement.  The applicant claims that he was involved in organising taxi drivers’ protest against the local government in Fuqing China.  He has experienced persecution and mistreatment from the Chinese government.”

   (Errors in Original.)

2. At the hearing before the Court today, the applicant appeared in person.  He was assisted by an interpreter in the Mandarin language.  Ms B Griffin appeared for the first respondent.

3. It was quite clear today that when the opportunity was given to the applicant to make submissions on his behalf or indeed when he was called upon to say whatever he wished to say in support of his application, the applicant was unable to assist the Court in any way whatsoever. Despite the repeated opportunity, the applicant’s responses were either, “I don’t know what to say”, or “I have no idea”.

4. The Court explained to the applicant the process by which applications for protection visas are dealt with in this country, and explained the different roles of the Tribunal and the Court, and attempted to explain to the applicant what the focus of the hearing before the Court today was meant to be.  That is, whether a legal error, or a jurisdictional error, could be discerned in the Tribunal’s decision.  The applicant was still unable to say anything to the Court. 

5. When the Court drew the applicant’s attention to the terms of the grounds of his application, and following some prompting from the Court, the applicant explained that those grounds were drafted with the assistance of a friend who was no longer in Australia.  When I pointed out to the applicant that this Court, only a matter of two days ago, dealt with another application involving an applicant from the People’s Republic of China whose stated grounds, other than for some differences in ground three, were identical in wording to the grounds that the applicant had now put before the Court, the applicant then explained that he did have some assistance from a migration agent.

6. Ultimately, neither the applicant, who ultimately stated that he did not know how to speak to the Court, which I understood to mean that he did not know what further to say to the Court, nor another person who attended the Court with the applicant, were able to assist the Court.

7. The applicant’s grounds, as stated, clearly lack detail and particularity. When the applicant first appeared before this Court at the first Court date on 20 February 2008, the applicant was on that occasion assisted by an interpreter in the Mandarin language. Amongst other orders that I made on that day, I gave the applicant the opportunity to file an amended application containing complete particulars of all of the grounds of review he sought to rely on and, indeed, gave the applicant the opportunity to file any additional evidence that he may seek to rely on.

8. I note from a report that appears on the Court’s file that the applicant consulted a lawyer on the panel of the Court’s Legal Advice Scheme on 23 March 2008. That consultation appears to have lasted for two hours and was facilitated by an interpreter in the Mandarin language. The applicant was given advice on that date. In light of the applicant’s inability to assist his own cause today, I am nonetheless satisfied, given the circumstances which I have outlined, that the applicant has had every opportunity to put his case before this Court.

Consideration

1. Looking at the grounds as stated in the application, ground one asserts a breach of s.424A of the Act. Neither by way of his application, nor before the Court today, has the applicant provided any particularity to explain or support that complaint. Section 424A of the Act does require the Tribunal to give the applicant particulars of any information which would be considered the reason, or part of the reason, for affirming the decision under review. There are, of course, as submitted by the first respondent, a number of exceptions to this requirement.

2. Any plain reading of the material before the Court reveals that the “information” upon which the Tribunal relied for affirming the decision under review was information provided by the applicant himself at the hearing.  Simply, the issue on which the Tribunal’s decision turned, that is, the issue that was determinative in its affirming the delegate’s decision (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”) at [35] and [44]), was that the Tribunal did not find the applicant’s evidence at the hearing to be credible. This information given by the applicant himself at the hearing before the Tribunal is excluded from the operation of s.424A(1) of the Act by s.424A(3)(b) of the Act. Further, given what was said by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [18] (citing with approval VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214, per Finn and Stone JJ at [24]), the Tribunal’s thought processes, its reasoning, and the adverse views it took of the applicant’s evidence, are not “information” for the purposes of s.424A of the Act. This ground does not succeed.

3. Ground two complains that the Tribunal failed to take all relevant information into consideration when applying the real chance test in determining whether the applicant would be persecuted on his return to China. The applicant, as noted earlier, was unable to assist the Court as to any details of what relevant information the Tribunal was said to have failed to take into consideration. Other than what was contained in the written statement attached to his protection visa application, and the oral evidence the applicant gave to the Tribunal, the applicant did not submit any other material to the Tribunal for its consideration. These then form the basis of what the Tribunal was required to consider.

4. Despite opportunity, the applicant has not put any evidence before the Court for example, by way of a transcript of the Tribunal hearing, to challenge the Tribunal’s account of what occurred at that hearing. On this account, it is quite clear that the Tribunal did take into account all relevant information, and did consider all aspects of the applicant’s claim, in considering whether the applicant had a well-founded fear of persecution for a Convention reason. On the material that is before the Court, the applicant was given every opportunity to provide further detail to his claims. I cannot see that there is any information which the Tribunal was required to take into account which it failed to take into account.

5. The Tribunal affirmed the delegate’s decision because it did not find the applicant to be a credible witness when he appeared before it. This adverse credibility finding was, in my view, derived following a rational analysis, and arrived at after proper consideration of the applicant’s evidence put before it. On what was before it, it was open to the Tribunal to find that the applicant had not provided sufficient detail such as to reflect adversely on his credibility, and the Tribunal gave reasons for arriving at this conclusion. In this regard, see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559, NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 (“NADH of 2001”) at [115].

6. If, on the other hand, what the applicant seeks to complain about by his statement that the Tribunal “failed to take all relevant information into consideration” is that the Tribunal did not accept his claims as stated, then a finding of credibility is of course a finding of fact for the Tribunal to make as the “decision-maker par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at [67], per McHugh J). Any challenge to the Tribunal’s finding in the circumstances of this case in this way can really only be seen as a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).

7. In the third stated ground the applicant claims that the decision has been affected by “prejudgement” and is “unreasonable”.  To the extent that the applicant may be asserting, therefore, bias on the part of the Tribunal, then it is the case that such an allegation needs to be clearly and explicitly made, and to be the subject of evidence, to have any prospect of succeeding (see Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69]).

8. It is of course a “rare and exceptional case” where bias will be apparent merely from the Tribunal’s decision record (SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 at [16] per Tamberlin, Mansfield and Jacobson JJ, SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA (“SCAA”) at [38], SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17, Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28). Nor is there anything on the material before the Court such as to give rise to any view that the well-informed lay observer would reasonably apprehend that the Tribunal did not bring an impartial mind to bear on its decision (see generally NADH of 2001 at [14]).

9. Any plain reading of the Tribunal’s decision record (and I note again in this regard that despite opportunity, the applicant has not brought forth any evidence to challenge the Tribunal’s record in this regard) reveals that the Tribunal undertook a detailed examination of the applicant’s claims and provided him with opportunity at the hearing to provide detail and explanation. The mere fact that the Tribunal made adverse findings on its own does not give rise to any inference as to the state of mind of the decision-maker before, and whilst, the matter was under consideration, nor of “prejudgement” of the issues that fell for decision (see SCAA at [38]).

10. To the extent that the applicant complains that the Tribunal decision was “unreasonable”, the applicant does not say why it is unreasonable beyond the inference that it was unreasonable of the Tribunal not to believe him. In any event, to the extent that unreasonableness may be available to the applicant as a ground for review, it cannot be sustained in the light of the Tribunal’s reasoning process as expressed in its decision record (Re MIMA; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [34]-[37], NADH of 2001 at [12], [129]-[134], [135]).

11. It was not unreasonable of the Tribunal to find that the applicant had not provided sufficient detail in support of his claims, nor that on that basis that the Tribunal could not reach the requisite level of satisfaction such that a protection visa must be granted (see ss.65 and 36(2) of the Act) (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]-[16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73). The Tribunal based its conclusion that it could not be so satisfied on what the applicant himself said at the hearing before the Tribunal. This ground also does not succeed.

12. This is a case to which s.422B of the Act applies as it was prior to 29 June 2007. [I note that the application was made on 28 June 2007.] As such, therefore, the matters set out in Division 4 of Part 7 of the Act are the exhaustive statement of the natural justice hearing rule (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]). In this regard, relevantly, I have already dealt above with the requirements of s.424A, which is a part of this Division of the Act.

13. In terms of s.425 of the Act, the applicant was invited to a hearing, he attended and he gave evidence. Bearing in mind what was said by the High Court in SZBEL (at [35] and [44]) regarding s.425 and procedural fairness, the only account of what occurred at the hearing, that is the Tribunal’s own account, before the Court now, reveals that the determinative issue in this case was the issue of the applicant’s credibility. In this regard, the Tribunal did give the applicant opportunity to comment on each of the six individual matters from which the credibility finding was specifically derived (see in particular CB 63). Importantly, not only were each of these items discussed with the applicant at the hearing, but the Tribunal squarely told the applicant as follows (at CB 62.4):

    “The Tribunal put to the applicant that it had concerns that he was unable to provide much detail about his involvement in the taxi driver group, the nature of its activities, the way it was organised, how the protests were organised or his meetings with government officials.”

1. On what is before the Court now, I cannot see that any issue of the type raised in SZBEL can be said to arise in the current circumstances of this case.

2. I cannot discern jurisdictional error as it is alleged to arise from the stated grounds of the application, nor otherwise.  For the applicant to succeed before the Court today in his application, the Court would need to discern jurisdictional error on the part of the Tribunal.  I cannot see such error.  This application is therefore dismissed.

3. It is, in my view, appropriate that an order for costs be made in this matter.  There is nothing before the Court to cause the Court not to make such an order.  I note that the applicant said, when given the opportunity to comment, that he had nothing further to say. 

4. As to the amount, I note, as was submitted by Ms Griffin, that the amount sought is well within the amount that the first respondent could have sought according to the relevant Schedule to the Rules of this Court.  In any event, given the work that has been done by the first respondent’s legal representatives in responding to the applicant’s application, I am satisfied that the amount is a reasonable amount in all the circumstances.  I will make the order in the terms sought.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  A Douglas-Baker

Date:  2 June 2008