SZMZH v Minister for Immigration

[2009] FMCA 445

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMZH & ANOR v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 445

MIGRATION – Review of RRT decision – Applicants citizens of India – where Tribunal identified discrepancies between principal applicant’s written and oral evidence – whether Tribunal made errors of fact – where applicant alleged bias.

NABE v Minister for Immigration (No.2) [2004] FCAFC 263
Minister for Immigration v Yusuf (2001) 206 CLR 323
Re Refugee Review Tribunal: Ex parte H (2001) 179 ALR 425
Applicant A165 of 2003 v Minister for Immigration [2004] FCA 877

First Applicant: SZMZH

Second Applicant: SZMZI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3127 of 2008

Judgment of: Raphael FM

Hearing date: 8 May 2009

Date of Last Submission: 8 May 2009

Delivered at: Sydney

Delivered on: 8 May 2009

REPRESENTATION

For the Applicants: In person

Counsel for the First Respondent: Ms S Sirtes

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. Application dismissed. 

2. Applicant to pay the First Respondent's costs assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3127 of 2008

SZMZH

First Applicant

SZMZI

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The two applicants in this matter are husband and wife who are citizens of India and who arrived in Australia on 15 March 2008.  They applied for protection (Class XA) visas from the Department of Immigration & Citizenship on 17 April 2008.  On 30 June 2008 a delegate of the Minister refused to grant them protection visas and on 21 July 2008 the applicants applied for review of the delegate's decision from the Refugee Review Tribunal.  The principal applicant in this matter is the wife, her husband having completed an application which indicated that he did not have any separate grounds upon which to claim Australia's protection.  The applicants live in Griffith and the Tribunal arranged for a hearing to take place by way of video conferencing on 1 October 2008. On 20 October 2008 the Tribunal determined to affirm the decision under review and published that decision on 6 November 2008.

2. The grounds upon which the female applicant claimed to be a person to whom Australia owed protection obligations were said to have arisen out of her activities with the SEWA Bharat, the All India Federation of Self-Employed Women's Associations, for whom she undertook some voluntary work in her home town.  She claimed that she had been brought up in a middle class family and after completing her education became a tailor and dress designer.  Under the influence of a school teacher she had taken part in processions supporting women worker's rights in her home town.  She became an activist for the introduction of a minimum wage for working women and became involved particularly with some industrial action on a major employer known as the Atlas Company.  She said in her application that that company manufactured televisions and other communication equipment.

3. On 31 January 2008 there was to be a strike at Atlas.  The applicant was to take the women workers there to the leaders of the union and to the SEWA Bharat.  When she was waiting for the workers to arrive she was set upon by five thugs who insulted her and bashed her.  She was taken to hospital where, she said in her application, she was treated for a month.  When she was released from hospital she went home in a very scared condition, particularly as her husband was at the time out of the country in Taiwan.  She felt threatened by the Atlas Company and did not think she would get any state protection because Atlas was an important employer in the town.  She felt she would need to bribe the police in order to obtain State protection and she did not have the money to do so.  The applicant was advised to leave the country, which she did, together with her husband.

4. At the Tribunal hearing the applicant was questioned about her story.  The hearing record contained in the Tribunal's decision indicates that the Tribunal felt that it was unearthing discrepancies between what the applicant was telling the Tribunal at the time and her previous statements. It discussed these discrepancies under the provisions of section 424AA at [CB112] at [51] and [CB113] at [62].

5. One of the discrepancies related to the time that the applicant spent in hospital. The Tribunal indicated that in the protection visa application she had suggested that she had been treated for a month, whereas at the Tribunal hearing she said she was only in hospital for two days but attended the hospital for some further period of time. The Tribunal asked the applicant whether she had any corroborating evidence of the incident having been reported to the police but the applicant did not. She said that she had not contacted the police because they were corrupt and would not have listened to her. Another matter of concern to the Tribunal was the fact that the applicant had said that Atlas was a company making televisions in her PVA but before the Tribunal she had suggested that the company made clothes and she would do sewing and embroidery for it. There were other discrepancies specifically referred to by the Tribunal at [CB113] [62].

6. Commencing at [CB114] [67] the Tribunal explained in its Findings and Reasons why it felt that the applicant could not be accepted as a credible witness.  It had offered the applicant the opportunity to provide it in writing with comments upon the matters which it had informed her were of concern and the applicant had responded by providing a medical certificate and two letters from the SEWA Bharat as well as a further statement. The Tribunal did not accept the applicant's explanations for the inconsistencies and contradictory evidence that it had referred to.  It did not accept that the injury to the applicant's ear, which was evidenced by the medical reports, was caused by the attack on 31 January 2008.  In regard to the references from the SEWA Bharat the Tribunal says at [CB 116] [86]:

   “The applicant claims that she was involved in SEWA Bharat.  Following the hearing, she provided the Tribunal with two letters on this organisation's letterhead.  Neither are dated and both refer to periods of time when the applicant was involved with the organisation.  As there is no date on the letters the Tribunal is unable to establish from them when the claimed involvement took place and whether it was ongoing at the time the applicant left India.  There is no evidence of the identity of the writers of the letters or their roles in the organisation.”

   The Tribunal also noted that the letters did not refer directly to the incident that the applicant complained of.

7. The Tribunal considered the applicant's claim that she would not be protected should she return to India and concluded from the independent country information which it had discussed with her that there was adequate state protection in India.  It also considered the possibility, which it discussed with the applicant, of her relocating.  The applicant expressed to the Tribunal her concern about relocation on the grounds that Atlas was a big company which would find her anywhere.  The Tribunal noted that there was no evidence about this and therefore concluded that it would be reasonable for her to relocate. 

8. On 28 November 2008 both applicants filed an application with this Court seeking review of the decision of the Refugee Review Tribunal.  The applicant received assistance from counsel pursuant to the Minister's Scheme.  On 26 March 2009 the applicants filed an amended application with this Court.  There were two grounds of review, both particularised. The first ground was that the Tribunal made a jurisdictional error when it failed to assess the applicant's fear of harm and misapplied the law:

   “The Tribunal failed to properly assess the applicant's claims and became biased due to misunderstanding the evidence.  This affected the matters considered and not considered by the Tribunal.”

9. The particulars deal with some findings of fact made by the Tribunal.  The first was the date upon which the applicant was attacked.  The Tribunal notes that it asked the applicant what year she was attacked on three occasions and each time she responded that it took place in 2007.  The Tribunal asked her again whether the attack occurred in 2008 and the applicant claimed that she was confused about the year and her responses to this question were also confused because of the video link.  The applicant claims that the questions were asked in such a manner that she became confused, but regrettably I have no evidence of this in the form of a transcript or a tape.  Before me the applicant said that she had recently received a CD of the Tribunal hearing and that this Tribunal hearing was in the Mandarin language and was clearly not her own hearing.  However, it would appear that the legal adviser who was instructed under the Minister's Scheme received a copy of the hearing tape and I am prepared to draw the inference that if there was a serious objection to the manner in which the questions were asked, the matter would have been raised in a more direct manner and earlier.

10. The applicant then proceeds to deal with the Tribunal's views about the inconsistency in her evidence as to the length of time she spent in hospital.  It is correct that she provided an explanation for the difference between her statements.  She says that in her PVA she wrote, “I was treated in hospital for nearly one month” and that did not indicate a continuous stay in hospital for one month.  The difficulty which the applicant has with this complaint is that the Tribunal was able to come to the view that it did about these statements even if some other persons dealing with the same evidence might have taken a more charitable course.  In NABE v Minister for Immigration (No.2) [2004] FCAFC 263 at [53] the Full Bench, Black CJ, French and Selway JJ said:

    “It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision.”

11. The Full Bench quoted from the views expressed by the High Court, McHugh, Gummow and Hayne JJ in Minister for Immigration v Yusuf (2001) 206 CLR 323 at [351-352] and then said:

    “An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact:

    “Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding of fact made in the course of making a decision demonstrates that an administrative Tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.”

    Re Minister: Ex parte Cohen (2001) 177 ALR 473 at 481 [35] per McHugh J.”

12. Insofar as the ground which I have discussed also contains the suggestion of the jurisdictional error of apprehended bias, I am unable to say that this has been made out.  The test for apprehended bias was identified by the High Court in Re Refugee Review Tribunal: Ex parte H (2001) 179 ALR 425 at [27]:

    “The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question to be decided.”

    Making a mistake or misunderstanding an applicant's evidence without more will seldom constitute the failure to bring an impartial mind to the question. 

13. The second ground contained in the amended application is that:

    “The Tribunal committed jurisdictional error in its misunderstanding of some of the applicant's evidence and arbitrary rejection of other parts of it.  The erroneous findings and mistaken conclusions affected the Tribunal's exercise of power giving rise to an error of law and jurisdictional error.”

14. The first particular of this ground relates to the attack by the thugs from the Atlas Company.  The applicant says that she never told the Tribunal that these thugs actually attacked her.  She said that they abused her and she fell to the ground.  The Tribunal's statement at [CB112] [52] is:

    “The applicant told the Tribunal that when she was attacked she was abused and insulted by her attackers.  They hit her on the right side of her face and injured her ear.  She fainted and her neighbour took her to hospital.”

15. Clearly, if the applicant did not say these words, this would raise some concern.  I have no evidence that she did not do so currently before me.  The best evidence I have is the report in the Tribunal's decision record that she did say it.  What I do note is that the Tribunal's grounds for not accepting her evidence do not include any criticism of the statement reported at [52] because of any inconsistency between that alleged statement and any other, so that it would be difficult for the applicant to argue that there was anything in it which influenced the Tribunal in its decision-making process.  Whilst the Tribunal did not believe that the incident occurred, it is not because of this allegedly incorrect reporting of her statement.  It is because the Tribunal came to a conclusion based upon other inconsistencies that the applicant's story could not be believed.

16. The applicant claims that the Tribunal made up its mind before hearing and therefore set about trying to establish discrepancies in her statements.  This is a serious allegation of actual bias which, as Lander J said in Applicant A165 of 2003 v Minister for Immigration [2004] FCA 877 at [59]:

    “Actual bias is not easily proved.  It requires proof that the decision maker was biased and that the decision maker approached his/her function with a closed mind and so firmly closed that, notwithstanding whatever evidence or arguments were put before the decision maker, the decision maker's pre-determined decision would not vary.”

    The applicant has done no more than make the allegation.  She has provided no indication of how these difficult hurdles to establishing that allegation may be overcome. 

17. I am unable to see in the Tribunal's decision that the grounds put forward by the applicant have been made out.  A close reading of the decision record would not seem to indicate any other grounds of jurisdictional error because, whilst it might be said that the discussion of relocation is slight, this was an independent ground of decision and the Tribunal had already come to the conclusion that the applicant was not a refugee within the meaning of the Convention; so the comments were, in all probability, unnecessary. 

18. The application is dismissed. The applicants must pay the respondent's costs which I assess in the sum of $4,000.00.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  13 May 2009