SZMLU v Minister for Immigration & Anor
[2008] FMCA 1450
•7 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMLU v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1450 |
| MIGRATION – Protection (Class XA) Visa – citizen of China claiming fear of persecution on grounds of political opinion – apprehended bias – merits review. PRACTICE & PROCEDURE – Refugee Review Tribunal legal advice panel scheme – where applicant sought to take part in legal advice scheme and then left NSW – panel lawyer unable to give advice – adjournment refused. |
| Migration Act 1958 (Cth), s.424A |
| SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 followed NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | SZMLU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1673 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 7 October 2008 |
| Date of Last Submission: | 7 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 7 October 2008 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondents: | Mr Potts |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application is dismissed.
The applicant is to pay the First Respondent’s costs fixed in the sum of $4800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1673 of 2008
| SZMLU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China. She asks the Court to review a decision of the Refugee Review Tribunal that was handed down on 5 June 2008. The Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) Visa. The applicant asks for two orders:
a)An order setting aside the decision of the Tribunal;
b)An order that the application be remitted to a differently constituted Refugee Review Tribunal to be determined according to the law.
It has been explained to the applicant that in order to make the orders that she seeks the Court must be satisfied that the decision is affected by jurisdictional error. If the Court does make an order in the nature of mandamus remitting the application to the Tribunal it is not appropriate to make an order requiring the Tribunal to be differently constituted. The Full Court of the Federal Court in an appeal from this Court has made it clear that it is doubtful that the Court has the jurisdiction to make such an order[1].
[1] See SZEPZ v Minister for Immigration and Multicultural Affairs (2006) FCAFC 107.
In any event, where a matter is remitted to the Refugee Review Tribunal the Principal Member of the Tribunal will, as a matter of course, direct that another Tribunal member deal with the application. The applicant claims that the Tribunal fell into error in five ways:
(1) The Tribunal made its decision with apprehended bias.
(2) The Tribunal completely ignored her important evidence.
(3) The Tribunal failed to consider her evidence properly and fairly.
(4)The Tribunal failed to consider her evidence properly and fairly or it made its finding with apprehended bias.
(This fourth ground appears to be a repetition of ground (1) and ground (3)).
(5) The Tribunal made incorrect findings.
The background to this matter is that the applicant arrived in Australia on 11 September 2007. She applied for a Protection (Class XA) Visa on 25 October 2007. The basis of her application was that she and other villagers in the Fuqing area owned farms which were taken over by the Chinese authorities in order to build a highway. The authorities did not provide appropriate compensation and the applicant was involved in protests about this action by the authorities.
She claims that as a result she was arrested, detained and tortured because she was considered to be an anti-government activist. After her release she distributed pamphlets urging that her cousin should be released from custody. When her actions came to the attention of the authorities they then sought to arrest her again. A Delegate of the Minister for Immigration and Citizenship refused the application for a visa on 21 January 2008. In the Delegate's decision record the Delegate said:
I note that there are certain areas of the applicant's claims which appear implausible and which cast doubt on the overall credibility of her claims[2].
[2] See Court Book at page 49
The Delegate set out why she considered the applicant's claims were implausible and included in her consideration the manner of the applicant's departure from the People's Republic of China. The Delegate noted that the applicant claimed that she had left China illegally and had difficulty obtaining a passport but the Delegate was satisfied that the applicant was issued with a passport in her own name by the Chinese authorities and that she had no difficulties making a legal departure[3].
[3] See Court Book at page 50
The Delegate considered Independent Country Information about procedures for people seeking to depart from China and was satisfied that if the applicant had been detained as an anti-government activist it would have been very unlikely that she would have been able to depart China legally using a passport in her own name. The Delegate also noted that the applicant had not provided any documentation or any other evidence to support any of her claims.
After having her application for a visa refused the applicant applied to the Refugee Review Tribunal on 22 February 2008 for a review of that decision. She did not provide any documentation with her application. The Tribunal invited the applicant to attend a hearing on 16 April 2008. The Tribunal noted that an interpreter in the Fuqing dialect was requested and the applicant attended the Tribunal on 16 April and gave evidence with the assistance of an interpreter in that language.
The applicant's son who has been a student in Australia since April 2007 also attended the Tribunal hearing and gave evidence on his mother's behalf. After the Tribunal hearing had been completed the Tribunal wrote to the applicant on 23 April 2008. The letter was intended to comply with the provisions of s.424A of the Migration Act. The letter put certain information to the applicant for her comments or response.
The Tribunal's letter informed the applicant as to why the information was relevant. The letter informed the applicant that certain aspects of her evidence and her son's evidence were inconsistent which might lead the Tribunal not to be satisfied that she and her family had had to move in 2005 because their property was seriously affected by the construction of a road.
The letter informed the applicant that information quoted may lead the Tribunal to find that because she was able to obtain a passport lawfully in August 2007 this would indicate that she was not of adverse interest to the Chinese authorities and might lead the Tribunal to doubt that the applicant had been detained as she had claimed.
The Tribunal's letter told the applicant that certain information might lead the Tribunal to find that her explanation of why she participated in protests and the distribution of pamphlets in May and June 2007 was not credible. That finding might lead the Tribunal not to accept the applicant was involved in those activities as she had claimed. The Tribunal's letter also said:
The inconsistency between your account of your addresses prior to coming to Australia and the account given by your son combined with other information detailed above may lead the Tribunal to doubt your credibility as a witness and to conclude that you have not given a truthful account of your experiences in China. If the Tribunal makes these findings it would not be satisfied that you have a well founded fear of persecution and that you are owed protection by Australia[4].
[4] See Court Book at page 77
The applicant replied to this letter in a three page letter dated 6 May 2007. The Tribunal signed its decision on 26 May 2008 and handed the decision down on 5 June. In the Tribunal decision record the Tribunal set out the applicant's claims and a detailed summary of the evidence given by the applicant and her son at the Tribunal hearing. The Tribunal set out relevant parts of its s.424A letter of 23 April 2008 and a summary of the applicant's reply of 7 May 2008.
The Tribunal referred to Independent Country Information about passport procedures in China and the legal basis of land ownership and contracts in that country. The Tribunal's finding and reasons are set out in the Court Book at pages 107 through to 111. The Tribunal was satisfied that the applicant is a national of the People's Republic of China based on the production of her passport. The Tribunal summed up the applicant's claims for protection in this way:
In essence the applicant claims that she faces persecution in the PRC because she handed out pamphlets or petitions on the new highway on 1 May 2007 to protest against the lack of compensation paid to farmers of which she is one whose land was taken for the construction of the new highway and because she distributed letters calling for the release from detention of her cousin, Ms Lin[5].
[5] See Court Book at page 107
The Tribunal was not satisfied that the applicant had engaged in the distribution of pamphlets or brochures or letters calling for the release of Ms Lin or had engaged in anti-government activities in protest against the failure of the government to pay adequate compensation when the farm land was resumed for the construction of a highway.
The Tribunal set out in its decision in a considerable amount of detail why it was not satisfied about the applicant's account of her claims. The Tribunal referred to the applicant's explanation given in reply to the s.424A letter but did not express itself to be satisfied as to the explanation. The Tribunal went on to find:
The Tribunal also finds the applicant's explanation for how she found out that she is of adverse interest to the authorities to be far fetched.
The Tribunal went on to say:
The Tribunal is of the view that the applicant's explanation for why she was able to obtain a passport and depart China without difficulty but has since become of adverse interest to the authorities is vague and lacking in detail and has been fabricated to enable the applicant to explain why she is frightened to China when she had no difficulty leaving China[6].
[6] See Court Book at page 110
The Tribunal accepted the applicant's claim that she was in severe financial hardship but expressed the view that it had largely been caused by the fact that she had borrowed money in order to send her son to Australia to study and did not accept that there was any connection between the applicant's poor financial situation and one of the five reasons under the Refugee's Convention.
The Tribunal was not satisfied that the applicant's fear of returning to China was a well founded fear of persecution for a convention reason. The Tribunal considered the applicant's evidence accumulatively and did not accept the key parts of her claim and expressed herself not satisfied that she had a well founded fear of persecution and affirmed the decision not to grant her a Protection (Class XA) Visa.
In her application filed on 30 June 2008 the applicant sets out, as I indicated, five grounds as to why she believes the Tribunal fell into jurisdictional error. The applicant has not filed a written outline of submissions and confined herself at the hearing to repeating her request that her application should be sent back to the Refugee Review Tribunal. The applicant sought an adjournment of the hearing, or what I take to be an application for an adjournment on the basis that she had not had an opportunity to receive the free legal advice that is available through the New South Wales Refugee Review Tribunal Legal Advice Panel Scheme.
The applicant had attended Court on the first Court date which was 21 July 2008. At that stage she completed the usual documentation in which she requested to take part in the scheme. That document was tendered in Court on the first Court date. At that stage the applicant had given as an address for service an address in a suburb of Sydney. However, on 23 July 2008 which is two days after the first Court date the applicant filed a notice of change of address for service. That document gave her new address for service as an address in Queensland.
An examination of the Court's correspondence file shows that a referral had been made to a solicitor on the panel, Mr Ron Kessels. Mr Kessels sent a facsimile to the Registrar of the Court advising that he had been unable to set up an appointment with the applicant. He gave as the reason the fact that the applicant was currently in Brisbane and did not expect to return to Sydney for some time. I put this to the applicant at the hearing and she confirmed that she had flown down from Brisbane this morning.
The RRT Legal Advice Panel Scheme is not Australia-wide. A referral was made but the applicant chose to remove herself to another state. It is hardly surprising that Mr Kessels was unable to meet up with her and provide her with legal advice. There is no right to legal advice under the scheme. I decided not to adjourn the matter and I continued with the hearing.
The applicant's first ground is that the Tribunal's decision was affected by apprehended bias. She referred in her application to the fact that the Tribunal had raised issues about her residential address and inconsistencies between her evidence and that of her son at the Tribunal hearing. The applicant claimed that the Tribunal rejected her further evidence and comments on the information because of apprehended bias and set out a number of factual matters. I am not of the view that the test for apprehended bias has been met. In their text Judicial Review of Administrative Action the authors, Messrs Aaronson, Dyer and Groves state:
The core of the tests for bias for decision makers exercising public power is whether the relevant circumstances are such as would give rise in the mind of a fair minded and informed member of the public to a reasonable apprehension of a lack of impartiality on the part of the decision maker.
More specifically the High Court has set out the test to be applied in Re Refugee Review Tribunal; ex parte H[7] per Gleeson CJ, Gaudron, and Gummow JJ at [27]-[28]. Their Honours said:
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 to the question to be decided. That formulation owes much to the fact that Court proceedings are held 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.
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 matters in issue and the conduct which is said to give rise to an apprehension of bias[8].
[7] (2001) 179 ALR 425
[8] at [27] and [28]
I am not of the view that the Tribunal's rejection of the applicant's evidence would be seen by a hypothetical fair minded lay person properly informed as to the nature of the proceedings to give rise to any apprehension of bias. The applicant first ground fails.
The applicant's second ground is that the Tribunal completely ignored her important evidence. Her third ground is that the Tribunal failed to consider her evidence properly and fairly. In each case the ground as Mr Potts of counsel, who appeared for the Minister, has submitted, can be described as a failure to take into account relevant considerations. The matters that the applicant raises in respect of ground 2, in my view, constitute an explanation of factual mattes and an attempt to reargue matters of fact before this Court.
This amounts to what is known as Merits Review and is not available in proceedings in a Court conducting jurisdictional review of administrative action. In her particulars to ground three the applicant takes issue with the Tribunal's finding that she had not attracted the adverse attention of the Chinese authorities and she sets out her claim that she was detained for 10 days in May 2007; that her neighbour had been a leader of protests and that another man who is a local villager had been arrested and confessed everything under torture.
The applicant claimed that this man blamed her as the actual organiser and she had been targeted by the authorities since then. This of course is an effort to re-argue factual matters but it is well established that matters of fact are matters for the Tribunal provided that there is evidence upon which conclusions of fact can be made. I am satisfied that the Tribunal has demonstrated an understanding of the factual issues and has set out in some considerable detail the factual matters and that the factual conclusions reached by the Tribunal are supported by the evidence before it. Consequently grounds 2 and 3 must fail. Ground 4 says:
The Tribunal failed to consider my evidences properly and fairly or the Tribunal made its finding with apprehensive bias.
This is a repetition of the matters contained in grounds 1 and 3. The applicant states that she did not accept that her application for why she was able to obtain a passport but has since become of adverse interest to authorities was described by the Tribunal as vague and lacking in details. The applicant claims that the Tribunal made this finding out of bias when it said that her explanation:
Has been fabricated to enable the applicant to explain why she is frightened to return to China when she had no difficulty leaving China[9].
[9] See Court Book at page 110
The particular finding about which the applicant complains is a finding that is adverse to the applicant's credibility and it is well accepted that credibility findings are factual findings and are strictly matters for the Tribunal so long as there is evidence upon which such a finding can be made. The applicant's ground 4 fails. Ground 5 complains that the Tribunal made incorrect findings. She says:
I am now in severe financial hardship but it is obviously not because that I have borrowed the money to support my son's study in Australia. Instead it is completely because that my family has been subject to persecution by the Chinese government.
This is a submission that goes directly to a question of fact. As Mr Potts of counsel who appeared for the Minister submits:
Whatever are the boundaries of jurisdictional error they do not comprehend simple errors of fact[10].
[10] See NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]
Consequently ground 5 does not make out any jurisdictional error. I am conscious of the fact that the applicant is not legally represented in these proceedings. I have read through the Tribunal decision independently of either the applicant's submissions or those of the first respondent and I am unable to discern any arguable case of jurisdictional error.
I am satisfied that no jurisdictional error has been demonstrated. In the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by sub-s. 474(2) of the Migration Act. Consequently the decision is not subject to orders in the nature of certiorari or mandamus and it follows that the application must be dismissed. I will dismiss the application.
There is an application for costs on behalf of the first respondent Minister. The applicant has been unsuccessful in her claim and this is an appropriate case in which to make an order for costs. The amount sought is $4800 inclusive of counsel's fees; that is a figure that is below the amount set in the scale to the Federal Magistrates Court Rules. I consider it is an appropriate figure.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 21 October 2008
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