SZLTI v Minister for Immigration
[2008] FMCA 739
•6 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLTI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 739 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – application for Protection (Class XA) visa – whether apprehended bias – whether applicant’s physical and mental state at the Tribunal hearing properly taken into account – whether applicant’s s.424A response properly considered – merits review not function of judicial review – credibility – whether breach of s.425 of the Act – procedural fairness. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 424A, 425, 474 |
| SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 NADR v Minister of Immigration & Multicultural &Indigenous Affairs [2003] FCAFC 167 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Abebe v Commonwealth of Australia (1998) 197 CLR 510 Wahu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 890 Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 NAMJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 983 |
| Applicant: | SZLTI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3813 of 2007 |
| Judgment of: | Orchiston FM |
| Hearing date: | 27 March 2008 |
| Date of Last Submission: | 27 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 6 June 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr T. Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application filed on 12 December 2007 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3813 of 2007
| SZLTI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
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), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) handed down on 13 November 2007 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a Protection (Class XA) visa to the applicant.
Background
The applicant was born on 24 June 1970 and was aged 36 years at the time of his application for a protection visa.
The applicant arrived in Australia on 1 March 2007 on a Chinese passport issued in his own name.
The applicant lodged an application for a protection visa on 13 April 2007 on the basis that he feared being arrested immediately upon his return to China for his breach of the Birth Control policies, and his incitement of co-workers against the government. He claims that he was physically and mentally tortured and forced to do punitive unpaid jobs at a furniture factory and then at a construction site under surveillance, and where he was not allowed to return to his home. He claims his family have continued to be targeted by police since he left China (Court Book (CB) 25–30).
On 9 July 2007 the delegate refused to grant the applicant’s protection visa on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (CB 31-42) (see Legislative framework).
On 10 August 2007 the applicant applied to the Tribunal for review of the delegate’s decision (CB 44–47).
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 (the Convention).
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 particular 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 the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceedings
On 24 August 2007 the Tribunal sent a letter to the applicant inviting him to appear before it on 14 September 2007 to give oral evidence and present arguments (CB 52-53). The applicant attended the hearing on that day.
On 21 September 2007 the Tribunal sent the applicant a letter, pursuant to s.424A of the Act, inviting him to provide written information that the Tribunal considered would be the reason, or a part of the reason, for its affirming the decision under review (CB 68-72).
On 27 September 2007 the applicant forwarded a response to the s.424A letter (CB 73-76).
The Tribunal’s findings and reasons (CB 98–103)
The Tribunal did not accept the applicant as a credible witness, and rejected all his key claims of past harm in China and his fear of persecution if he returned to China:
The Tribunal did not find the applicant to be a credible witness for the reasons set out below. In particular there are a number of inconsistencies and contradictions in the statements made by the applicant, both written and orally, to the Department and the Tribunal which are of such a magnitude that it indicates that the applicant: does not have 3 children; was not detained and fined by the Family Planning Section; was not forced to work in a furniture factory or on a construction site in Putian; was not detained and tortured by the PSB because he signed an open letter and was nominated by workers to represent them. The inconsistencies and contradictions also indicate that the applicant has not suffered the harm he claims to have suffered in PRC (CB 98 [71]).
The Tribunal concluded that:
In the Tribunal’s view there is no plausible evidence before it that the applicant has suffered persecution in PRC because of his political opinion, his imputed political opinion, his membership of a particular social group, his imputed membership of a particular social group, his religion or for any other Convention reason. Nor in the Tribunal’s view does the evidence establish that there is a real chance that the applicant will suffer persecution for a Convention reason either now or in the reasonably foreseeable future if he returns to his country. Having regard to the above the Tribunal is not satisfied, on the evidence presently before it, that the applicant has a well founded fear of persecution for a Convention reason if he returns to PRC in the foreseeable future (CB 102 [88]).
The proceedings before this Court
The applicant filed an application in this Court on 12 December 2007 setting out 2 grounds of review of the Tribunal’s decision.
The applicant appeared in person before the Court on 27 March 2008 with the assistance of a Mandarin interpreter. Mr Reilly of counsel appeared for the first respondent.
Grounds of application
The grounds of the application are:
(1)The Refugee Review Tribunal (the Tribunal)’s decision has included a reasonable apprehension of bias.
Particulars
·The Tribunal made its finding in relation to my credibility mainly on the ground that there are some of inconsistencies or contradictions in my written materials to the Department and oral evidences at the hearing before the Tribunal.
·The Tribunal, however, has significantly ignored my important as follows:
As I have claimed at the Tribunal’s hearing, I was not in a good health condition at that time; and I suffered from seriously stomach ache. So, I had some confusion; and especially, during the late part of the hearing, I almost lost control in my mind and even did not know what I had said to the Tribunal…
I also have to emphasize that I am a truthful witness and I have told the truth in that information provided to the Department and the Tribunal. I might have some confusion or my evidences might have some inconsistencies at the Tribunal’s hearing; but they were really because of my poor health conditions as well as my huge mental and psychological pressure.
·On the surface, the Tribunal might have read my further evidences provided in my response of s.424’s letter given by the Tribunal. The Tribunal, however, failed to demonstrate that it has a genuine attempt to consider my further evidences as follows:
The birthday of my second child might be wrongly typed in the application. It is “7 November 2002” instead of “7 November 1997”.
At that hearing, I might not quite understand the questions put by the Tribunal. Actually, my wife has been forced to accept sterilization operation respectively for twice: one was happened in November 2002 after my second child has been born; and the other one was in early July 2005 when my son had been reported in late June 2005.
At the hearing, I might have some confusion with the year owing to huge mental or psychological pressure. It should be “in August 2005”, instead of “in August 2004”, when I registered my son. It should be “in July 2005”, instead of “in July 2004”, when I stopped hiding after I had been reported in June 2005.
Similarly, at the hearing, I might have some confusion about the year when I had paid RMB 16,000 to the Birth Control Office. It should be in July “2005” instead of “2004”. I also had some confusion in relation to the date for other events at the hearing; because I was really under huge pressure.
My wife and son actually stopped hiding early in July 2005. Our son was sent to the hospital in late June 2005; but the hospital did not report my son at the beginning; instead, it reported my son early in July 2005.
It was true that my wife and son were detained for 3 days; and I was detained for 2 days. The reason why I did not mentioned in my statutory declaration was because that the detention was not the formal one like being detailed by the Public Security Bureau (“PSB”); instead, it was just informal detention. As a matter of fact, everyone, who has been regarded to violate against “Birth Control Policy”, must be subjected to detention. So, it is quite common practice in China.
I, therefore, have to emphasize that I have three children; my wife had to undergo forced sterilisation operation for twice; my wife, my son and I were subjected to detention; and we were fined by the Birth Control Office and paid a first instalment.
What I have to clarify that:
·The Birth Control Office took my RMB 16,000 and sent me to work at a furniture factory in July 2005;
·My problems at the furniture factory began in November 2006 when Mr. Zeng and I were taken to the PSB and we were denounced to incite the workers against the government. On 1 December 2006, both of us were transferred to a construction site in Putian of Fujian Province.
·Both Mr. Zeng and I were physically and mentally tortured when were interrogated by the police.
·Gaoqi Airport was in Xiamen City. So, I went to Xiamen for three days before I left China; and on 28 February 2007, I left China from Gaoqi Airport.
I also have to emphasize that I am a truthful witness and I have told the truth in the information provided to the Department and the Tribunal. I might have some confusion or my evidences might have inconsistencies at the Tribunal’s hearing; but they were really because of my poor health conditions as well as my huge mental and psychological pressure.
I am the person owed protection obligations by Australia, because I must be subjected to persecution on my return due to my political opinions and actions against the PRC authorities.
(2)The Tribunal failed to comply with its obligations under s.425 of the Act.
Particulars
·It is owing to my poor health situation at the hearing before the Tribunal that I was unable to have a genuine opportunity, which should be entitled under s.425 of the Act, to give my oral evidences in support of my application or to present my argument against the issues arising in the relation to the review.
Ground 1 of the application
The applicant appears to rest his claim of apprehended bias on two principal bases as set out in the particulars, namely, a claim that the Tribunal did not properly take into account his physical and mental state at the Tribunal hearing, and a claim that the Tribunal did not properly consider his response to the s.424A letter.
The applicant has not provided a transcript of the Tribunal hearing before the Court in support of his allegation of apprehended bias. It is well-settled that any allegation of bias must be “distinctly made and clearly proved”: SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 at [22]; citing Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531, [69].
The Tribunal decision record indicates that the Tribunal provided the applicant with a short break at the hearing in response to his claims of having a stomach ache (CB 102). Further, in its summary of the Claims and Evidence, the Tribunal carefully acknowledged that the applicant in his s.424A response, put forward a series of claims concerning his physical and mental state at the hearing, including that:
·he had some confusion about which year his son was registered due to huge mental pressure or psychological pressure (CB 95 [58]);
·for similar reasons, there was some confusion about the year when he paid RMB16,000 to the Birth Control Office (CB 95 [59]);
·there was confusion in relation to the date for other events at the hearing as he was under huge pressure (CB 96 [60]);
·he was not in good health at the hearing as he had a serious stomach ache (CB 97 [63]);
·he has some confusion especially during the later part of the hearing and he almost lost control of his mind and even did not know what he stated to the Tribunal (CB 97 [63]); and
·there was some confusion and inconsistencies at the hearing, but his health was poor and there was huge mental and psychological pressure (CB 98 [68]).
In its Findings and Reasons, the Tribunal also clearly took into account the applicant’s claims in his s.424A response concerning his physical and mental state at the hearing, but concluded that the applicant was not a witness of truth:
In the response the applicant claimed that at the hearing there was some confusion about which year his son was registered due to huge mental pressure or psychological pressure. He claimed that it should have been August 2005 instead of August 2004 when he registered his son. Further he claimed that it should have been in July 2005 instead of in July 2004 when he stopped hiding after he had been reported in June 2005. In the response the applicant claimed that for similar reasons as those set out above, there was some confusion about the year when he paid RMB16,000 to the Birth Control Office. He claimed that it should have been in July 2005 instead of July 2004. He also claimed that there was confusion in relation to the date for other events at the hearing as he was under huge pressure (CB 99 [75]).
The Tribunal does not accept the applicant’s explanation. The Tribunal gave the applicant ample opportunity to provide the dates when events occurred or to set the time frames for the above events by its questioning. There were many inconsistent statements about when the above events occurred. In particular the inconsistencies as to when he and his family came out of hiding, when his son was registered and when he had dealings with the Family Planning Section are important points in time as they set off the claimed chain of events that lead the applicant to be forced to work in the furniture factory, detained and tortured by the PSB, and then forced to work on the construction site. The Tribunal would expect the applicant to be able to provide a reasonably accurate timeframe for when these events occurred even if exact dates could not be provided (CB 99-100 [76]).
On the above evidence and for the above reasons the Tribunal finds that the applicant is not a truthful witness and his statements, both oral and in writing, 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 that it is not satisfied that: the applicant has three children; his spouse had to undergo forced sterilisation operations after the birth of her second and third child; his spouse, his son and he were detained in Fuan Sai Qi; and that he was fined by the Family Planning Section and paid a first instalment. In reaching this finding the Tribunal has taken into account the applicant’s claims that he was not well and had a stomach ache. The findings made below [concerning the furniture factory claims] also support the Tribunal’s finding in relation to the applicant’s lack of credibility (CB 100 [79]).
In his response the applicant stated that he had claimed at the hearing that he was not in good health as he had a serious stomach ache. He claimed that he has some confusion especially during the later part of the hearing and he almost lost control of his mind and even did not know what he stated to the Tribunal (CB 101 [83]).
The Tribunal notes the applicant’s statement that he had a stomach ache, however, before the Tribunal finished its questioning about what happened at the factory before the applicant was transferred to the construction site the Tribunal had taken a short break (CB 102 [84]).
For the above reasons and as the Tribunal has found that the applicant is not credible the Tribunal also finds that it is not satisfied that: the applicant was forced to work in a furniture factory where he signed an open letter requesting workers’ rights; was nominated by workers to represent them; and detained and tortured by the PSB before being transferred to a construction site in Putian. In reaching this finding the Tribunal has taken into account the applicant’s claims that he was not well and had a stomach ache (CB 102 [85]).
For the above reasons and as the Tribunal has found that the applicant is not credible the Tribunal also finds that it is not satisfied that: the applicant was forced to work at a construction site in Putian. In reaching this finding the Tribunal has taken into account the applicant’s claims that he was not well had had a stomach ache [emphases added] (CB 102 [87]).
Taking the above matters into consideration, I am satisfied that there is nothing on the face of the decision record to show that a hypothetical fair minded lay observer 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, might reasonably apprehend that the Tribunal did not bring an impartial mind to the task of the decision making process in regard to the applicant’s claims in his s.424A response concerning his physical and mental state at the hearing: Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 at [28].
I accept the submission by the first respondent that:
The Tribunal was aware that the applicant claimed to have a stomach ache at the hearing. It was not bound to find that the mere fact that the applicant claimed to have a stomach ache explained all the many inconsistencies that it found in his evidence and that it put to the applicant in its section 424A letter. … In this case the Tribunal gave very detailed reasons and invited the applicant in writing to comment on inconsistencies that it had perceived in his evidence. The fact that it did not regard those inconsistencies as adequately explained by the applicant is no evidence of apprehended bias at all (transcript 27/4/08, pp 5-6).
I therefore consider that the Tribunal carefully considered each of the matters raised in the applicant’s s.424A response in reaching its conclusion that the applicant was not a person to whom Australia has protection obligations.
The remaining particulars set out under this ground seek, in effect, to recanvass the particular factual claims and statements made by the applicant at the Tribunal hearing; in his s.424A response; and in regard to the Tribunal’s adverse credibility findings on these matters.
The Tribunal’s adverse findings as to the applicant’s credibility, including its assessment of his physical and psychological state, were findings of fact par excellence, not open to review by this Court: Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67]). As the Full Federal Court observed in NADR v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9]:
The finding of facts, including the making of findings of credibility, was uniquely within the jurisdiction of the Tribunal and not within the jurisdiction of the Court. It would have been in contravention of Minister for Immigration &Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 for the Court to have engaged in merits review.
Merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion does not amount to an error of law. It is not part of the function of this Court to engage in fact finding concerning the merits of an applicant’s case: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]. Furthermore there is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth of Australia (1998) 197 CLR 510 at 560 [137].
The requirements of procedural fairness deal with the process of decision-making, not the merits of the decision. As indicated by the High Court in SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63 [at 25]:
what is required by procedural fairness is a fair hearing, not a fair outcome… It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes, not its actual decision.
Overall, I consider that a fair reading of the Tribunal’s decision record makes it clear that the Tribunal understood the nature of the claims made by the applicant; explored those claims with him at the hearing, identified the determinative issues and gave him sufficient opportunity to give evidence and make submissions on those issues at the hearing; gave to him in writing the concerns it had that may be the reason or part of the reason for affirming the decision under review; and had regard to the material provided in response by the applicant; then made findings based on all the evidence and material before it.
I consider that the Tribunal’s findings of fact were open to it on all the evidence and material before it; that it provided well-articulated and sufficient reasons for its decision; and reached its conclusions based on those findings. In these circumstances, I am satisfied that the Tribunal accorded the applicant procedural fairness in compliance with the statutory regime in reaching its decision and that it performed the task required of it in accordance with law.
Accordingly, for the reasons stated above, Ground 1 of the application is rejected.
Ground 2 of the application
The applicant claims that the Tribunal did not comply with s.425 of the Act in that he was not given a genuine opportunity to present his case due to his poor health at the time.
The question for determination, as posed by RD Nicholson J in Wahu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 890 at [39], is:
whether, having regard to the particular circumstances of the case including the intended purpose of the hearing before the Tribunal and the support and assistance available to the appellant, there was compliance with the implied requirement that an applicant be fit to give evidence and present arguments, or whether the appellant’s psychological state rendered the Tribunal hearing a nullity: see NAMJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 56 at [53] and at [58]; WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624 at [43]; WAIU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1 at [40].
It is clear that in certain circumstances a Tribunal may be in breach of s.425 if it fails to take into account the state of health of an applicant. In Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 at [37], the Full Federal Court remarked in this regard that:
… it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a ‘real and meaningful’ invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140.
Mere assertions by the applicant, however, both at the hearing and in his s.424A response, regarding his state of health, do not establish that he was unfit to give evidence at the Tribunal hearing. It is clear that “by analogy with a claim of procedural unfairness”, the onus is on an applicant to provide evidence, such as a medical report, stating that he was unfit to give evidence at the Tribunal hearing: NAMJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 983 at [69], or at the very least to persuade the Tribunal that he would be denied a ‘real and meaningful’ opportunity to present his case should he be forced to proceed in the circumstances. The applicant in this case has not done so. The Tribunal simply did not accept that his assertions regarding his state of health could explain the “magnitude” of the inconsistencies and contradictions in his oral and written versions to the delegate and before it (CB 98 [71]).
In this regard, I accept the submission by the first respondent that:
The claim now appears to be that [the applicant's] medical condition or psychological condition, or combination of the two, was such that he was not fit to give evidence at the Tribunal hearing. Again, that is a serious claim. It requires evidence in support. In particular, one would expect there to be medical evidence from a doctor or psychiatrist in support of a claim that the applicant was unfit to give evidence. In the absence of such evidence, the applicant has not discharged the onus which he bears if he seeks to establish a breach of section 425 (transcript 27/4/08, p 6).
As stated above under ground 1, I am satisfied that the Tribunal has otherwise complied with its statutory obligations under s.425(1) of the Act by identifying to the applicant the determinative issues and giving him the opportunity at the hearing to give evidence and make submissions concerning those determinative issues, before reaching its conclusions: SZBEL at [33]–[48]. Beyond this, as observed in SZBEL at [47]-[48], procedural fairness does not require the Tribunal to disclose its mental processes and subjective appraisals, including its disbelief of the applicant’s claims, in reaching its decision. I thus detect no procedural unfairness on this basis.
Accordingly, for the reasons stated above, Ground 2 of the application is rejected.
Conclusion
The Court finds that 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 application before this Court is dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 6 June 2008
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