SZMLB v Minister for Immigration and Citizenship

[2008] FCA 1921

FEDERAL COURT OF AUSTRALIA

SZMLB v Minister for Immigration and Citizenship
[2008] FCA 1921

SZMLB v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1501 of 2008

RARES J
28 NOVEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1501 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMLB
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	28 NOVEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

2.Order 3 made by the Federal Magistrates Court on 3 September 2008 be quashed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1501 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMLB
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	28 NOVEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. This is an appeal from a decision of the Federal Magistrates Court refusing the applicant’s claim for constitutional writ relief challenging the decision of the Refugee Review Tribunal signed on 13 May 2008 to affirm a decision of a delegate of the Minister to refuse to grant the applicant a protection visa:  SZMLB v Minister for Immigration [2008] FMCA 1248.

   PROCEDURAL IRREGULARITIES IN THE FEDERAL MAGISTRATES COURT

2. Before proceeding to deal with the substantive issues raised in the appeal, I must first turn to the course of proceedings before the Federal Magistrates Court.  Among the other orders which his Honour made in dismissing the appeal, was an order that:

   “3.       The transcript of today’s proceeding is to be obtained, placed on the court          file and made available to the parties and their legal representatives for           inspection.”

3. That was based on what his Honour recorded as having occurred in pars [11]-[13] of his reasons for judgment where he said:

   “11.The Court was able to verify that the person nominated in the student visa application as the authorised recipient and who is said to have assisted with the preparation of that application was a real person and that the contact telephone number was accurate. The person [the lady] answered the telephone number when it was dialled and confirmed that she had assisted with the completion of the application. She stated that she was not a registered migration agent but at the time was working as a student agent.

   12.The applicant's son confirmed on his own behalf and on behalf of his mother that they had not drawn the Minister's Department's attention to any false information in either the student visa application or the student guardian visa application or the documents provided with them. 

   13.In view of the specific allegations that the signatures of the applicant, her husband and her son had been forged on those applications and that false information and false documents had been provided, which were identified by the applicant's son, I directed that the transcript of the proceedings be obtained and made available for inspection.  I have in mind that the Minister's Department may wish to pursue those allegations further.  That is beyond the scope of this proceeding.”

4. His Honour used a telephone in open court to contact the lady and interrogated her, although not on oath.  As the reasons recorded, his Honour then interrogated the appellant’s son who was the student concerned, and asked him questions about matters that may not properly have been drawn to the Department’s attention

5. During the course of the hearing I inquired of counsel for the Minister as to how his Honour came to proceed in this way.  Counsel for the Minister refreshed his recollection of what had occurred below by reading the transcript and took me to portions of it during the hearing of the appeal.  The transcript, which his Honour had directed to be taken out, was on the court file.  It appeared that the son was granted leave to assist the appellant as a McKenzie friend (McKenzie v McKenzie [1971] P 33). The hearing below commenced and had proceeded for about 40 minutes when his Honour adjourned briefly while a telephone was set up in the court room to enable the lady named as assisting in the preparation of the visa application to be telephoned. The transcript then recorded that his Honour resumed the hearing and apparently spoke on a speaker-phone. His Honour identified who he was and asked whether the person at the other end of the telephone was the lady named in the form. The transcript then recorded a discussion between the lady and his Honour which continued without her being sworn. His Honour asked the lady a number of questions, including whether she was able to confirm that she had assisted with the application and a number of other questions which went into some detail as to what had occurred.

6. His Honour then asked the appellant, her son and counsel for the Minister whether they were going to ask the lady any questions, saying:

   “This is not evidence, but it is general information.”

7. The telephone conversation then continued with the magistrate putting, among other things, the suggestion that the son and mother were now saying that the information in the application, which the lady had assisted to draw up, was false and had been arranged by a member of the Chinese criminal underworld.  After the telephone call finished, the hearing continued.

8. In my opinion what occurred in the Court below was a substantive irregularity which requires the court to recognise that the proceedings before his Honour miscarried.  It was no function of the Federal Magistrate to seek “general information”, most particularly not by telephoning, on his own initiative, a person and speaking to her in open court about matters of assertion in the proceedings before the Refugee Review Tribunal, which were before the Federal Magistrates Court for judicial review.

9. The proceedings below were not a trial conducted in accordance with law.  A Federal Magistrate cannot tender or rely on material selected, on his or her own motion, out of the Court file:  Huang v University of New South Wales (No 3) (2006) 154 FCR 16. In my opinion, the proceeding before his Honour miscarried and did not constitute a decision arrived at in accordance with law. His Honour was not holding the balance between the parties, but was entering the ring as a participant concerned to find “general information” and then to put that “general information” in the form of a transcript before the Department.

10. Whatever may have been the irregularities, or inconsistencies, between the appellant’s and her son’s accounts given in support of an earlier visa application and the one which the appellant was putting for review of the tribunal’s decision to refuse her a protection visa, it was not a function of his Honour to seek out or find “general information”.  Nor was his Honour entitled of his own motion to use the Court’s powers and proceedings to obtain “general information” so as to record it on a transcript, or to cause the transcript to be made available for inspection.  As his Honour noted, the purpose for which he acted was “beyond the scope of this proceeding”.  In my opinion Order 3 made by his Honour on 3 September 2008, must be quashed.

11. Judicial review proceedings do not involve the Court undertaking of its own initiative some general self‑informing exercise by telephoning third‑parties, or having them called to give evidence.  The question before his Honour was whether the appellant, (i.e. the applicant before the Court below), had established the grounds in her application that a jurisdictional error had been made by the Refugee Review Tribunal in the consideration of her application for review. 

12. The fundamental departure from the requirement that the Court conduct an impartial hearing exhibited in the decision below causes me to have to deal with the appeal on the basis that it must be a complete re‑hearing.

    THE APPELLANT’S CLAIMS

13. The appellant is a citizen of People's Republic of China.  She arrived in Australia on 31 October 2007 and applied to the Department for a protection visa on 14 December 2007.  On 21 January 2008 the delegate of the Minister refused to grant the protection visa on the basis that the appellant was not a person to whom Australia owed protection obligations under the Refugees Convention.  She applied to the tribunal for a review of that decision. 

14. In a statutory declaration accompanying her application for a protection visa, the appellant set out the basis for her claim.  She asserted that she had three children and that she had worked since 1985 when she was about 13 years old in a market, selling seafood products, up until the time that she married in 1989.  She claimed that, in October 2002, she commenced a business breeding ducks when her last child began school.  She claimed that that business became a substantial one but that persons connected to government officials asserted that she had to give the ducks medication to prevent bird flu.  She claimed that these persons and corrupt officials were connected to senior persons in the government of the area in which she lived.

15. She was required, so she claimed, to spend a considerable amount of money buying medications which ultimately turned out to be useless as, she claimed, most of her ducks died after the medicine was administered in about June 2007.  She claimed that a number of other poultry farmers had been similarly affected and that in July 2007 she organised an open protest with about 15 poultry farmers in a local town, which attracted about 200 protestors.  She claimed that more than 20 people at the protest were arrested by the police, including herself, and that she was detained in an old store room for 10 days, during which time she claimed to have been interrogated and subjected to inhuman treatment.  She claimed that she had been forced to sign a confession of her anti‑government activities, to promise not to take further action and to pay a penalty of 5000 RMB.

16. She claimed that she would not give up her struggle and that she actively continued to engage in protest activities.  She claimed to have been subjected to further investigation by the Public Security Bureau Police from September 2007 and to have been interrogated three times shortly afterwards.  She claimed that three of her co‑protestors were arrested on 26 October 2007, and fearing the danger that she herself may be arrested, she claimed to have left immediately for Australia on 31 October 2007. 

17. She claimed that her fellow protestors, who had been arrested, had confessed and that she had been targeted as a result by the Chinese authorities.  She claimed that her husband had been interrogated by the Public Security Bureau Police twice since she had left and that her father had also been interrogated as well as other members of her family and her friends.

    THE DELEGATE’S DECISION

18. The delegate noted that a person who had adversely come to the attention of Chinese authorities would have difficulty in obtaining a passport and in leaving China, based on country information which was set out in the delegate’s reasons.  The delegate noted that the appellant had claimed that her political protest activities had brought her to the adverse attention of the Public Security Bureau Police on at least three subsequent occasions following her initial arrest. The delegate said that based on country information, the delegate was satisfied that if she had been detained, interrogated and tortured in July 2007 because she was considered to be an anti-government activist, as she claimed, it was very unlikely that she would have been able to depart China legally, using a passport that had been issued in her own name, in January 2007.

19. The delegate also took notice that the appellant was able to leave four days after she had obtained information that she had been reported as a key member who played an active role in distributing anti-government propaganda.  The delegate found that this was a strong indication that her claims, concerning those matters, were not based in fact.  The delegate, having considered all the material before her, rejected the application for a protection visa. 

    THE PROCEEDINGS IN THE TRIBUNAL

20. The appellant then applied to the tribunal for a review of the delegate’s decision.  The tribunal set out in detail, the contents of the protection visa application and statutory declaration.  The appellant had arrived in Australia under a Subclass 580 (Student Guardian) Visa, issued on 10 October 2007.  The tribunal wrote to the appellant and invited her to a hearing on the basis that, having considered all the material before it, it was not satisfied that she could be granted a protection visa on the information given by her alone.

21. At the hearing, the appellant gave evidence through an interpreter, which the tribunal summarised in its decision.  It asked her whether what had been put in her protection visa application was true and she said it was.  The tribunal then put to her that her son had entered Australia in May 2007 and was still studying at a high school, and that she lived with him.  She said that her son’s application to come to Australia was true and accurate, but the documents attached to his application were not true.  The tribunal then went through those documents with her and put to her that what she was telling it was that her son had entered Australia based on fraudulent documents and that she had agreed with that conclusion.

22. The appellant then told the tribunal that she had come to Australia as a student guardian on an application that was true and accurate.  The tribunal then asked her about the documents attached to that application.  She told the tribunal that her best friend had helped her to get them done and that she had not seen the documents and that all that she had given to her friend was her passport, an ID card and her household registration.  The appellant claimed that later she was told that her visa had come through.  She gave her best friend 10,000 RMB when the visa arrived, because her best friend told her that that was what it cost.

23. The tribunal inquired about her husband’s employment and the appellant told it that he carried corn around an animal feed factory, a job he had commenced after she had come to Australia.  Before that, she said that he assisted in the duck business, but all the ducks were now dead.  The tribunal then reviewed, with the appellant, her claims in her protection visa application and statutory declaration.

24. Then it turned to her passport having been issued in January 2007.  The tribunal suggested that that might cause it to believe that she was preparing to leave China well before the events of July and following, which she had described.  The appellant responded that she was thinking of taking a holiday in Thailand and had only thought of Australia after the disturbing events, which, she claimed, gave rise to her claim to a protection visa.  The tribunal noted that her son had been issued a passport in August 2006 and that he entered Australia on 9 May 2007.  She said she could not remember the precise dates, but her son had arrived in Australia at a time when none of the adverse things, she claimed to have happened in China, had occurred.

25. The tribunal then reminded her that she had said her son’s application had been true, but documents with it were false, indeed, fraudulent.  She denied that they were fraudulent.  The tribunal then took the appellant through those documents.  It asked her questions and received her evidence about them.  In essence, she responded that a snake head had put together the material used to assist in the obtaining of the student visa for her son.  Then it told her, in accordance with s 424AA, that the information, which it proceeded to give to her, might lead the tribunal not to accept her claims.  The tribunal outlined that she could comment or respond, either at the hearing or after an adjournment, or in writing.

26. The tribunal identified that, at the beginning of the hearing, the appellant had said that she had first come to the attention of the authorities on 20 September 2007 (being the date on which the tribunal had previously recorded she had told it, orally, was the first time in which she had come to the attention of the Chinese authorities).  She agreed that that was what the date was and then said that the first time was 10 September and the second time was 20 September.  She did not raise the claim of being detained by the authorities until the tribunal had reminded her of it.  The tribunal said that that suggested that her claim was not a truthful one.  In effect, the appellant responded that that was a question of her bad memory.

27. Next, the tribunal indicated that her son’s student visa application materials were before the tribunal.  It summarised their effect, including a document that had been provided in support from the Bank of China, outlining a student loan, offered to the appellant’s husband, to finance the son’s study of about 500,000 RMB.  The tribunal informed her that the Bank of China was one of a very few banks that the Australian Government accepted as being reliable.  The appellant told the tribunal that her husband went to get the loan himself, because her son wanted that to happen.  The tribunal, again, under s 424AA, informed the appellant that it would consider this financial information about their business, together with other documents used in support of the student visa application.  It said that those documents suggested that the appellant and her husband conducted a spirulina farm business.  The tribunal said that possibly those documents disclosed the true source of her income prior to leaving China.  The tribunal showed her the employment documents, at this time, and told her that these documents might lead the tribunal to find that she did not have a duck farm.  The appellant responded that everything was false and that the snake head had made all of this up, including the Bank of China loan document.

28. The tribunal indicated that it might believe that the Bank of China would have thoroughly vetted the application and that the tribunal might, therefore, not accept her explanation.  The tribunal then turned to pointing out to the appellant that the documents attached to her student guardian application were very similar, if not identical to, those which had been attached to her son’s student visa application, and that might lead the tribunal to conclude that the duck farm claim was false, and so her claim for a protection visa might fail.  The appellant responded that the duck farm claim was true and that all of the employment documents were false.

29. The tribunal then discussed the fact that the appellant had said that whilst she had used a snake head to obtain her son’s student visa, her friend had been the person who had obtained her student guardian visa, but the same employment documents appeared in both, as being a fact that might lead the tribunal to consider that those documents were true.  Again, the appellant told the tribunal that the friend did everything and she did not know how the friend did it.  The tribunal also indicated that there was a document from the Bank of China, which showed a term deposit of 150,000 RMB and the appellant, again, asserted that this had been fabricated.

30. The tribunal told her that it might form the view that she had fabricated her claims and if so, her application would be refused.  It asked her whether she wished to comment or respond, then and there, that is, at the end of recounting all this material.  She stated to the tribunal that the duck farm claim was true and that the spirulina company documents were false.  She did not respond to the tribunal’s further request to inform it whether that was everything.  It asked her whether there was anything else that she wanted to say and she said that she just wanted the Australian Government to keep her here.

1. The tribunal recorded that the appellant did not seek any additional time to respond to or comment on the information and, indeed, it formed the view that she did not reasonably need additional time to respond or comment.  The tribunal noted that the application for a student guardian visa was dated 27 June 2007 and contained the statement that the appellant missed her son very much and wanted to take good care of him, so he could focus on his study.

   THE TRIBUNAL’S DECISION

2. Ultimately, the tribunal concluded that, having reviewed the evidence before it, the appellant was not a credible witness.  It concluded that she and her husband were involved with the spirulina business, outlined in the student visa application and her student guardian application, and that she had fabricated the story about the duck farm, for the purposes of claiming refugee status.  It rejected her claims concerning the duck farm and its sequel did not accept that the appellant had left China because of a fear of persecution for a Convention reason.

3. The tribunal did not accept that the appellant had been involved in any anti-government activities or was the subject to adverse interest of the authorities, before she left China, or that she had come to the adverse attention of the authorities, for reasons of a membership of a particular social group or political opinion, or any other reason.  It did not accept that she was of any adverse interest to the Chinese authorities.  Accordingly, it was not satisfied that the appellant had a well-founded fear of persecution for one or more Convention reasons, now or in the reasonably foreseeable future, were she to return to China.  Accordingly, it affirmed the decision of the delegate.

   THE APPELLANT’S CHALLENGES TO THE TRIBUNAL’S DECISION

4. Before me, the appellant argued that the tribunal had failed to comply with s 424AA of the Act, because it had failed to inform her why adverse information, on which the tribunal relied, may have been a reason or part of the reason for affirming the delegate’s decision, or of the consequences of it using that material.  She also claimed that the tribunal had not complied with s 424A.  Her notice of appeal also argued that the tribunal had acted with apprehended bias and had failed properly to consider her evidence that her best friend and the snake head had organised the earlier visas, on which she and her son had departed China.  In summary, she asserted that the tribunal had not treated her fairly.

5. Because of the view I have taken, concerning the irregularities that attended the federal magistrate’s hearing, and because this is an appeal by way of re-hearing, I have determined that it is better for me to consider this as a re-hearing on the materials in the appeal papers, having regard only to the transcript for the purposes of dealing with the irregular introduction of the “general information” and telephone discussion.

6. During the course of her address, I asked the appellant where the evidence was that the tribunal had not given her the opportunity to respond to information or informed her properly of her right to seek additional time to comment, in accordance with s 424AA(b)(iii) of the Act.  The appellant simply asserted that the tribunal had not complied with s 424AA without identifying any material on which such a claim was based.

7. Having regard to the tribunal’s statement of decision and reasons and, in particular, the material that I have set out extensively above, I am satisfied, since that the tribunal’s decision record is the only evidence of what occurred before the tribunal, that no error has been demonstrated in the way in which the tribunal approached its obligations under s 424AA.  On a number of occasions, the tribunal introduced new material in the student visa and the student guardian visa applications with prefatory remarks, explaining what was to happen and informing the appellant of the opportunity of being able to comment or respond, either at the hearing or after an adjournment, or in writing.  I am satisfied that no breach of the requirements of procedural fairness, under s 424AA, has been established.  That having occurred, there was no obligation for the tribunal, under s 424A(2A), to set out, in writing, any particulars of information or to invite the appellant to comment on or respond to information, which the tribunal considered may be a reason or part of the reason for affirming the decision under review.

8. It does not appear from the tribunal’s decision record that it expressly identified to the appellant the date on which the student guardian visa was applied for or the statement which the appellant made in it.  However, the tribunal does not appear to have relied on those matters in forming its ultimate conclusion in the section of its statement of decision and reasons, headed, “Findings and Reasons”.  In any event, even if that material were information, which might have been part of the reason for affirming the decision under review, it was immaterial in its consequence, given the overall discrepancies between the appellant’s claims and the material provided in the her student guardian visa application and her son’s student visa application, which were put to her during the course of the tribunal proceedings, and on which she had a full opportunity to comment.

9. I am of opinion that no useful result would ensue from the grant of relief were I to find (which I do not) that the tribunal had made a jurisdictional error in not putting the date of the student guardian visa application or the appellant’s statement in it to her:  SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 618-619 [27]-[29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.

10. The tribunal’s findings that the appellant was not a credible witness and its findings that her claims, concerning her reasons for departing China, including those rejecting her claims to have owned and developed a duck farm and its sequel, demonstrated that no useful result could flow from any finding of a jurisdictional error.

11. The appeal must be dismissed.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:  Dated:  16 December 2008

The Appellant:	Appeared in person
Counsel for the First Respondent:	Mr P Reynolds
Solicitor for the First Respondent:	Clayton Utz

Date of Hearing:	26, 28 November 2008
Date of Judgment:	28 November 2008