SZMKU v Minister for Immigration
[2008] FMCA 1419
•2 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMKU v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1419 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision of a decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of the People’s Republic of China – whether Tribunal breached Migration Act 1958 (Cth) s.424AA – whether Tribunal breached Migration Act 1958 s.424A – apprehended bias – standard of interpreting at Tribunal hearing – no reviewable error. |
| Migration Act 1958 (Cth), ss.424A, 424AA, 425 |
| SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 SZMCD v Minister for Immigration and Anor [2008] FMCA 1039 SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 ReRefugee Review Tribunal; Ex parte H (2001) 179 ALR 435 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 |
| Applicant: | SZMKU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1576 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 2 October 2008 |
| Date of Last Submission: | 2 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 2 October 2008 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondents: | Ms Weston |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $2,800.00.
I allow three (3) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1576 of 2008
| SZMKU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of the People’s Republic of China. She asks the Court to review a decision of the Refugee Review Tribunal refusing her a protection visa. The Applicant, in her application, asks the Court to make these orders:
a)To set aside the decision of the Tribunal.
b)To remit her application to a differently constituted Refugee Review Tribunal to be determined according to law.
I have explained to the Applicant that in order to make the orders that she seeks, the Court must be satisfied that the decision of the Refugee Review Tribunal is affected by jurisdictional error. I note that the Applicant asks for a Court for an order in the nature of mandamus, remitting her application to the Tribunal and asking that the Tribunal be differently constituted.
In my view, it is doubtful that the Federal Magistrates Court has the power to make any order relating to the constitution of the Refugee Review Tribunal on a remittal to that body. This is a task for the Principal Member of the Tribunal and I rely on the decision of the Full Court of the Federal Court in SZEPZ v Minister for Immigration and Multicultural Affairs[1] where their Honours doubted that this Court had the power to make any direction about the constitution of the Refugee Review Tribunal.
[1] [2006] FCAFC 107
In any event, it is my understanding that where a matter is remitted to the Tribunal as a matter of course the Principal Member directs that another Tribunal Member should constitute the Tribunal for the purpose of the determination according to law.
Background
The background to this matter is that the Applicant arrived in Australia on 3rd October 2007. She applied for a Protection (Class XA) visa on 16th November 2007. She accompanied her application with a statutory declaration. In that declaration, she set out that she and her husband had opened a furniture shop but experienced difficulties, not only from competition in the market but because of corrupt local officials. She claimed to have been involved in activity seeking support for the family of a man who had committed suicide and protesting against governmental officials.
She claimed that she, however, was arrested by the police and was detained for a period of some four weeks during which she period she was interrogated on many occasions and suffered from torture. Accordingly, her claim of a well founded claim for persecution would come under the convention headings of Imputed Political Opinion and Membership of a Particular Social Group being local business people. A delegate of the Minister for Immigration and Citizenship refused the application for a visa on 12th February 2008.
Application to the Refugee Review Tribunal
On 11th March 2008 the Applicant applied to the Refugee Review Tribunal for a review of that decision. The Applicant did not provide any additional document with her application. The Tribunal wrote to the Applicant on 25th March and invited her to attend the hearing on 14th April 2008.
The Applicant attended the hearing at which she gave evidence with the assistance of an interpreter in the Mandarin language. The Tribunal signed its decision on 12th May and handed that decision down on 22nd May 2008. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
The Tribunal’s Findings and Reasons
In the Tribunal decision record, the Tribunal set out the Applicant's claims in the evidence given to the Tribunal, and in its findings and reasons the Tribunal accepted that the Applicant is, in fact, a national of the People’s Republic of China. The Tribunal accepted that the Applicant had run a furniture shop in China, and that the Applicant and her husband knew a couple who ran a restaurant in the same district. However, the Tribunal was critical of the lack of detail in the Applicant's written account of her claim and was critical of what the Tribunal described as the stark inconsistencies in the Applicant's claims.
The Tribunal expressed doubt as to the credibility of the Applicant's claims. The Tribunal said:
“The Tribunal's overall impression is that the Applicant has taken a couple of true facts from her past and, possibly with external assistance (given how poorly she described details from experience), heavily interlaced them with false information.”[2]
[2] See Court Book at page 90.
The Tribunal did not accept as factual any of the key substantive claims in the Applicant's case and found that the Applicant was not a witness of truth. The Tribunal was not satisfied on the evidence that the Applicant faced a real chance of convention related persecution in the People’s Republic of China and was not satisfied that the Applicant's claimed fear of persecution was well founded.
The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
The Applicant commenced proceedings for judicial review in this Court by means of an application and affidavit in support, filed on 19th June 2008. In her application, the Applicant relies on three grounds:
(1) The Tribunal failed to consider my particular difficult situation at the Tribunal's hearing; and the Tribunal failed to consider properly that I have extremely been nervous under the huge pressure; and the Tribunal has in fact, made a decision with apprehensive bias.
(2) The Tribunal failed to comply with its obligations under s.424AA of the Act.
(3) The Tribunal made its finding without any substantial ground apart from its assumption.
The Applicant has attended Court and has made an oral submission. She reiterated her claim that the Tribunal did not consider that she was under enormous pressure at the hearing and submitted that the decision was based on Tribunal's bias. She referred to the fact that she could not speak directly with the Tribunal Member and had to deal through an interpreter. She was, to some extent, critical of the standard of interpreting offered by the interpreter, but said that she was too afraid to ask the interpreter and the Tribunal Member to repeat what they said. She claimed that the Tribunal Member was very fussy during the hearing.
The Applicant reiterated her claim that the Tribunal had breached s.424AA of the Act and claimed the decision was not based on any evidence but on the Tribunal's own bias.
For the First Respondent, the Minister for Immigration and Citizenship, Ms Weston submitted that the Applicant's submission had largely restated the grounds set out in her application. In dealing with a question of the Applicant's criticism of the standard of interpretation at the hearing, Ms Weston referred the Court to the decision of the Full Court of the Federal Court in Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs[3] at [17] of their Honours' judgment.
[3] [2003] FCAFC 230
In respect of the claim of a breach of s.424AA of the Act, Ms Weston referred the Court to an earlier decision of mine in SZMCD v Minister for Immigration and Anor[4] in support of the proposition that information for the purposes of s.424AA of the Act is information for the purpose of s.424A.
[4] [2008] FMCA 1039
When offered an opportunity to make a submission in reply, the Applicant asked for another opportunity to go to the Refugee Review Tribunal.
Ground 1
In dealing with the Applicant's grounds I note that the Applicant claims first of all that the Tribunal failed to consider fairly her particular difficult situation and her nervousness at the hearing and claimed that the Tribunal had made a decision with apprehended bias. In her application she referred to the Tribunal's criticism of the inconsistencies of her evidence and claimed that the Tribunal Member had already made his decision before the hearing.
She submitted that the Tribunal did not bring an independent mind to look at her case carefully and fairly, and claimed that there was an apprehension of bias. It is well established that an allegation of bias is a serious matter in that it alleged bad faith on the part of the decision maker. It must be strictly alleged and strictly proved. It is a rare and extreme occurrence that bias will be found by the Court purely from a reading of the Tribunal's reasons for decision. (See SBBF v Minister for Immigration and Multicultural and Indigenous Affairs[5] at [16]).
[5] [2002] FCAFC 358
The test for apprehended bias is set out in ReRefugee Review Tribunal; Ex parte H[6]. In that decision Gleeson CJ, Gaudron, Gummow JJ:
[27] The test for apprehended bias in relation to curial proceedings is whether a fair minded lay observer might reasonably apprehend that a Judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that Court proceedings are heard in public. There is some incongruity in formulating a test in terms of a 'fair minded lay observer' when, as is the case with the Tribunal proceedings are held in private.
[28]Perhaps, it would be better in the case of administrative proceedings held in private to formulate the test for apprehended bias by reference to a hypothetical fair minded lay person who is properly informed as to the nature of the proceedings, the matter in issue, and the conduct which is said to give rise to an apprehension of bias. Whether or not that be an appropriate formulation there is, in our view, no reason to depart from the objective test of the possibility as distinct from probability as to what will be done or what might have been done. To do otherwise would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.[7]
[6] (2001) 179 ALR 435
[7] See Re Refugee review Tribunal; Ex parte H at pages 434 and 435
The Applicant has not establish that the Tribunal was made aware of any particular unusual pressure or nervousness, which she faced, and it is a matter of common experience that many applicants suffer from nervousness or stress when appearing for an administrative Tribunal. The evidence does not disclose that, in my view, any hypothetical, perhaps, fair minded lay person properly informed as to the nature of the proceedings and the matters in issue, would have formed any apprehension of bias on hearing the proceedings before the Tribunal.
The lay observer would be highly unlikely to apprehend that the Tribunal Member may not have brought an impartial mind to the resolution to the question to be decided. The fact that a Tribunal Member may have been fussy during the hearing, does not, of itself, raise any jurisdictional error. In my view, ground 1 must fail.
Ground 2
To the Applicant's second ground. The Tribunal failed to comply with its obligations under s.424AA of the Act. It is well established and, in my view, s.424AA does not of itself impose any obligation on the Tribunal. It provides a way for the Tribunal if it chooses to do so to give oral particulars of adverse information to an applicant at a hearing that may otherwise need to be given in writing under s.424A(1), but quite clearly, there is no obligation on the Tribunal to do so. There is a discretion given to the Tribunal as to whether it will follow the procedure in s.424AA or not.
There is no information that would have come under the purview of s.424A (1) of the Migration Act. It is quite clear that all of the information before the Tribunal upon which the Tribunal relied came from the Applicant herself. Information for the purpose of s.424AA is the same as information for s.424A.
The fact that there were inconsistencies in the Applicant's evidence is not information for the purpose of s.424A, let alone for s.424AA. (See SZBYR v Minister for Immigration and Citizenship[8] at [18]). There is no breach of s.424AA of the Migration Act. Ground 2 must fail.
[8] [2007] HCA 26
Ground 3
The third ground is that the Tribunal made its finding without any substantial ground apart from its assumption. This does not make out jurisdictional error. It is no more than a claim of a disagreement with a Tribunal's factual finding. It is not an obligation on the Tribunal to produce evidence to refute the Applicant's claim. It is for the Applicant to satisfy the Tribunal, standing in the shoes of the Minister, that the Applicant meets the necessary criteria for the grant of a visa as set out in s.65 of the Migration Act.
If the Tribunal is not satisfied that the Applicant is entitled to a visa, then the obligation on the Tribunal is to refuse the application. There is no obligation on the Tribunal to disprove the Applicant's claim. The Applicant's third ground must fail.
Standard of Interpretation
The Applicant has complained about the standard of interpretation. I have been referred to the decision of the Full Court of the Federal Court in Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs.
The Full Court has made it clear that if an applicant is to succeed in an argument that the Tribunal has failed to comply with the provisions of s.425 of the Act by reason of inadequate interpretation, there are two things that the Applicant would need to establish:
a)The standard of interpretation at the Tribunal hearing was so inadequate that the Applicant was effectively prevented from giving evidence at the Tribunal; or
b)That errors made by the interpreter at the Tribunal hearing were material to the conclusions to the Tribunal, adverse to the applicant. (See Appellant P119/2002 at [17]).
The Applicant made a complaint at the Tribunal hearing on one occasion about the interpreter. Ms Weston, for the Minister has drawn my attention to a passage at page 85 of the Court Book where the Tribunal said:
“The Tribunal put to the Applicant that she seemed to be changing her evidence here, first saying that she heard from people who came to Australia and then saying she heard from a person who was still in the PRC. The applicant denied the earlier version and blamed the interpreter.
The Tribunal called in a hearing officer to replay the recording of the hearing. The Tribunal asked the interpreter to provide a fresh, correct translation of the relevant item of oral evidence previously provided by the Applicant. According to the fresh translation, the Applicant did, on the earlier occasion, claim that she first heard about her shop being closed from some other people who came 'here'.
The Tribunal put to the Applicant that in spite of her subsequent denials, she was on record has having said to the Tribunal that she first heard the news about the closure of her business from some other people who came 'here'. Responding to this the Applicant said it was her mistake.
The Tribunal duly placed the Applicant on notice that it was not impressed with her handling of facts up to now, particularly as she had repeatedly blamed the interpreter for a factual problem that, on close examination, was clearly sourced to her.”[9]
[9] See Court Book at page 85.
That is the highest that the Applicant's claim about the short comings of the interpreter at the hearing go. The Applicant has not provided a transcript of the Tribunal hearing nor any evidence to indicate that there was some relevant shortcoming on the part of the interpreter, or any short coming at all. In my view, that claim must fail.
The Tribunal invited the Applicant to attend a hearing under the provisions of s.425. The Tribunal was not satisfied on the Applicant's evidence that she had made out her case. The delegate was similarly not satisfied that the Applicant had established a claim.
The delegate noted that the Applicant had submitted no evidence to support any of her claims and described some of her claims as "superficial and formulaic"[10].
[10] See Court Book at page 49.
In my view, there was no issue raised at the Tribunal that was determinative of the Applicant's claim that would have come as a surprise to the Applicant after the delegate's finding. There is no breach of s.425. There is no breach of ss.424A or 414AA of the Migration Act.
Conclusion
In my view, the Applicant has not made out any jurisdictional error either in her application or in her submissions to the Court today. My own reading of the Tribunal decision does not disclose any jurisdictional error. The Tribunal decision is a privative clause decision as defined by sub-section 474(2) of the Migration Act.
It is not subject to orders in the nature of certiorari or mandamus as the Applicant seeks. It follows that the application will be dismissed.
There is an application for costs on behalf of the First Respondent, the Minister for Immigration and Citizenship, in the sum of $2,800.00. The Applicant has been unsuccessful in her claim and as the Minister has been legally represented it is appropriate to make an order for costs. The amount sought is $2,800.00 which is well below the figure specified in the Federal Magistrate's Court Rules.
The Applicant, however, says that she does not have the money to meet that amount. That may well be so. In this jurisdiction, however, that is a not a ground not to make an order for costs. It is a matter that the Court can and will take into account in deciding whether to allow time to pay. I am satisfied that I should allow three months to pay.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 14 October 2008
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