SZNBR v Minister for Immigration
[2009] FMCA 382
•29 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNBR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 382 |
| MIGRATION – Visa – Protection (Class XA) visa – review of Refugee Review Tribunal decision – whether the Tribunal failed to comply with Migration Act 1958 (Cth) s.424A(1) – apprehension of bias – allegation of error in interpretation at earlier Tribunal hearing – error of fact – it is no error of law simply in making a wrong finding of fact – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.424A, 425, 425A, 476 |
| SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 followed Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14 followed Randhawa v Minister for Immigration and Ethnic Affairs (1994) 2 FCR 437 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 followed Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 followed |
| Applicant: | SZNBR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3334 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 3 March 2009 |
| Date of Last Submission: | 3 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 29 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appeared in person |
| Solicitors for the Applicant: | No solicitor on the record |
| Solicitor for the Respondents: | Ms Kelso |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,900.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3334 of 2008
| SZNBR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of China and the Refugee Review Tribunal found that she was a citizen of that country, on the basis of her Chinese passport. She has applied to the Court for judicial review of a decision of the Tribunal, which affirmed a decision not to grant her a Protection (Class XA) visa on 19th November 2008.
She asks the Court to make these orders:
i)A declaration that the decision was contrary to law;
ii)An order in the nature of certiorari quashing or setting aside the Tribunal decision;
iii)An order in the nature of mandamus remitting her application to the Tribunal to be determined according to law; and
iv)An order for costs.
The form of two of the orders sought is problematic. First, the Applicant asks the Court to quash “the decisions and each of them”. This form of order is seen frequently but it is nonsensical. There is only one decision under review, which is the decision of the Refugee Review Tribunal made on 19th November 2008.
Again, the Applicant asks for an order in the nature of mandamus remitting her application to “a differently constituted Refugee Review Tribunal”. As I have said on previous occasions,[1] the Full Court decision of SZEPZ v Minister for Immigration and Multicultural Affairs[2] at [30] has cast doubt on the power of this Court to direct that the Tribunal be constituted differently for the purpose of reconsidering the Applicant’s application for review of the delegate’s decision. The constitution of the Tribunal is a matter for the Principal Member.
[1] 44 previous occasions at the time of writing
[2] [2006] FCAFC 107
The Applicant relies on five grounds of review:
(a) The Tribunal failed to consider my claims properly and fairly.
(b) The Tribunal failed to comply with its obligations under s.424A(1) of the (Migration) Act.
(c) The Tribunal’s decision has included a reasonable apprehension of bias.
(d) The Tribunal made its finding based on nothing apart from its unwarranted assumption.
(e) Again, both the previous Tribunal and the current Tribunal made their findings with a reasonable apprehension of bias; and again they made their finding based on its unwarranted assumption.
The Court is conducting judicial review of the decision of the Refugee Review Tribunal made on 19th November 2008. Any claims about the earlier Tribunal decision are irrelevant.
Background
The Applicant arrived in Australia on 19th April 2007. She applied for a Protection (Class XA) visa on 1st June 2007. In a statement attached to her application, the Applicant claimed mistreatment by the authorities in China, because she and her husband had breached China’s “one child” policy and because she was involved in political protests against corrupt officials.
A delegate of the Minister refused her application for a protection visa on 30th August 2007. The delegate found the Applicant’s claims to be “broad, vague and lacking in relevant detail”[3] and inconsistent, not only with other information within the application but also with Independent Country Information.
[3] Court Book 42
The Applicant applied to the Refugee Review Tribunal for review of the delegate’s decision but the Tribunal affirmed the decision on 6th December 2007. The Applicant sought judicial review of that decision from this Court. On 15th August 2008 Lloyd-Jones FM made orders by consent, quashing the decision and remitting the application to the Tribunal for determination according to law.
The RRT decision under review
On 2nd September 2008 the Tribunal invited the Applicant to provide further documents or written arguments not previously provided to it.[4]
[4] Court Book 85
On 11th September 2008 the Tribunal invited the Applicant to attend a hearing scheduled to take place on 7th November 2008.[5] The Applicant attended the hearing and gave evidence with the assistance of a Mandarin interpreter. The Applicant produced her passport and a copy of a document in Chinese with an English translation. The document was headed “Summons” and was addressed to a person other than the Applicant.[6]
[5] Court Book 87
[6] Court Book 97-102
The Tribunal handed down its decision on 19th November 2008, affirming the decision not to grant the Applicant a Protection (Class XA) visa. In the Decision Record[7] the Tribunal set out a detailed summary of the material it considered, being:
a)the Applicant’s written claims from her protection visa application;
b)a summary of the evidence given to the first Tribunal hearing, taken from the audio recording;[8]
c)a summary of the evidence given by the Applicant at the second Tribunal hearing;[9] and
d)two short items of Independent Country Information from the Department of Foreign Affairs and Trade referring to document forgery in China.[10]
[7] Court Book 105 - 127
[8] Court Book 110 - 116
[9] Court Book 116 - 122
[10] Court Book 122 - 123
In its “Findings and Reasons” the Tribunal addressed the Applicant’s claims that if she were to return to China she would be arrested and beaten by the police for involving herself in anti-government activities. However, the Tribunal was not satisfied with the credibility of the Applicant’s claims for these reasons:
a)The Applicant’s claims about the alleged incidents which caused her to fear future harm in China were “largely unsubstantiated and amount to little more than assertions”;[11]
b)The Tribunal was not satisfied that the death certificates of the Applicant’s mother and father provided evidence that they died of anything other than natural causes;[12]
c)The Tribunal referred to what it described as “a purported summons”[13] produced by the Applicant and expressed concerns about the credibility of the Applicant’s explanation of how she received it, and its timing. The Tribunal was not satisfied that any weight could be placed on the document and noted the Independent Country Information that referred to the prevalence of falsified documents in China;
d)The Applicant’s accounts of various incidents were “marked by significant discrepancies and implausibilities”;[14]
e)The Tribunal was not satisfied that about the plausibility of the Applicant’s claim about her father having asked her to gather people to make supporting speeches in Hou An Village, which was inconsistent with her claim in her initial statutory declaration;[15]
f)The Tribunal was not satisfied that the Applicant had offered a credible explanation for the renewal of her passport in 2007;[16]
g)The Tribunal was not satisfied that it was plausible that the Applicant would have been able to leave China using a genuine passport in her own name without encountering any trouble at the airport if she had previously been arrested and detained by the PSB;[17]and
h)The Applicant did not seek protection as a refugee immediately on arriving in Australia but waited for six weeks to do so.[18]
[11] Court Book 123 at [59]
[12] Ibid at [60]
[13] Ibid at [61]
[14] Court Book 124 at [62]
[15] Court Book 124-125
[16] Court Book 125 at [67]
[17] Ibid at [68]
[18] Ibid at [69]
The Tribunal considered that what it described as “these inconsistencies and improbabilities”[19] raised doubts about the credibility of the Applicant’s evidence in general. The Tribunal was not satisfied about key elements of the Applicant’s claims:
·That her father was arrested at a rally.
·That she was threatened or injured by the police in trying to save her father.
·That she ever involved herself in anti-government activity.
·That she was ever arrested or detained.
·That she was regarded by the PSB as a major suspect in distributing anti - government pamphlets.
·That her husband has been arrested by the PSB about her whereabouts.
[19] Court Book 126 at [70]
The Tribunal also found:
There is no reliable evidence before the Tribunal to indicate that anything has changed since the Applicant left China so that she could now be said to be at risk of harm where no risk existed previously.[20]
[20] Court Book 126 at [71]
The Tribunal also noted that the Applicant was not claiming a fear of harm for a breach of the One Child Policy, saying:
At the second Tribunal hearing she confirmed that the only reason for her claimed fear of harm was her anti-government activity.[21]
[21] Ibid
The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution because of a real or imputed anti-government political opinion or for any other Convention reason if she were to return to China and was therefore not satisfied that the Applicant was a refugee.
The Tribunal found the Applicant did not satisfy the criterion set out in s.36(2)(a) of the Act for a protection visa and affirmed the delegate’s decision not to grant her a Protection (Class XA) visa.
Application for Judicial Review
The Applicant commenced proceedings by filing an application and affidavit on 16th December 2008. Her affidavit annexed a copy of the Tribunal decision and made no other claims. She did not file an amended application.
The Applicant did not file a written outline of submissions but brought to Court a statement in Chinese which was read onto the record in English by the interpreter. The statement essentially covered the same ground as the lengthy particulars of the grounds of review in the Applicant’s affidavit.
The Applicant’s first ground of review is that the Tribunal failed to consider her claims “properly and fairly”.
The Applicant refers in her application to the Tribunal’s findings at paragraphs 59, 60 and 61 about the documentary evidence provided by the Applicant, including the copies of her parents’ death certificates. She referred to her statutory declaration in which she describes her mother’s illness and subsequent death and her father’s detention, release and subsequent death and stated:
Obviously, it would definitely be impossible that my parents passed away respectively within 20 days if their death was simply due to natural cause. I, therefore, have to say that the Tribunal has made a wrong finding completely.
The Applicant then referred to the Tribunal’s finding at paragraph 61 that it was not satisfied that any weight could be placed on the summons that had been produced because of the Independent Country Information that indicated that falsified documents are readily available and widely used in China.
The Applicant states:
Apparently, the Tribunal has actually implied that documentary evidence from China could not be used as substantive evidence, because falsified documents are readily available and widely used in China.
So, the Tribunal has, in fact, contradicted each other. On one hand, it rejected my claims actually for the reason that I did not submit documentary evidence, but on the other hand, it rejected my documentary evidence because falsified documents are readily available and widely used in China.
The Applicant’s second ground of review is that the Tribunal failed to comply with its obligations under s.424A(1) of the Migration Act.
The Applicant refers to the Tribunal’s finding at paragraph 62 of its decision[22] that there were “significant discrepancies and implausibilities”[23] in the accounts that the Applicant gave of an incident at the first and second Tribunal hearings. The Tribunal noted that at the second hearing:
When this discrepancy was identified at the second hearing she claimed that there had been an incorrect interpretation at the first hearing.[24]
[22] Court Book 124
[23] Ibid
[24] Ibid
The Tribunal rejected that explanation. The Applicant claims:
It is definitely a mistake of the interpreter at the hearing before first Tribunal, because I have never ever changed my evidence and I have told the Tribunal from the beginning to the end that a policeman struck me on the shoulder with his baton and I have never ever said that “a policeman pointed a gun at me”.
Although this discrepancy was identified at the hearing before current Tribunal, the current Tribunal failed to give me clear particulars of the information regarding this discrepancy, which the Tribunal has considered being the reason, or a part of the reason, for affirming the decision that is under review; and the Tribunal failed to ensure, as far as is reasonably practicable, that I understand why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and the Tribunal failed to genuinely invite me to comment on or respond to the information.
The Applicant’s third ground of review claims that the Tribunal’s decision has included a reasonable apprehension of bias.
The Applicant refers to the Tribunal’s findings at paragraph 65 of the decision[25] about the implausibility of the Applicant’s claims that her father asked her to gather together other people to make supporting speeches, in particular the depiction of the people concerned as “senior farmers” as opposed to “people working in a fish market in a town”. The Applicant claims:
The Tribunal, apparently, did not have basic knowledge about actual situation in China. In China, the household register is only divided into two classifications. The first classification, which is normally called as “non-agricultural household register”, is for the people who normally lived in urban area; and the second classification, which is normally called as “agricultural household register”, is for the people who normally lived in rural area.
It is also a tradition or culture that the people who have held “agricultural household register”, are normally called as “farmer”, but it is never meant that they genuinely do farm work.
As a result, according to Chinese tradition or culture, those people who gave the speeches and who were arrested together with my father, were definitely “farmers” because they were all holders of “agricultural household register”.
Again, it is the information that the Tribunal should definitely give to me clearly under s.424A(1) of the Act; and that the Tribunal should ensure me to understand that the information would be considered as the reason or part of the reason in its decision, and that the Tribunal should invite me to comment on it.
[25] Court Book 124-125
The Applicant’s fourth ground of review is that the Tribunal made its finding based on nothing apart from its unwarranted assumption.
The particulars of that claim are:
Regarding the issue about my departure from China on a passport in my genuine name as well as the issue of my late lodgement for protection visa, the Tribunal failed to consider my claims and my particular difficulties facing while I arrived in Australia at the beginning.
The Applicant’s fifth ground claims that both the previous Tribunal and the current Tribunal made their findings with a reasonable apprehension of bias; and again they made their finding based on its unwarranted assumption.
The Applicant claimed:
Both the previous Tribunal and the current Tribunal are actually of the view that people like my parents who age 77 or 82 should die?!
But, again, the issue was not as simply as the death of my parents. The issues, which the Tribunal even could not deny, are:
· my father had been detained illegally and unfairly by the PRC authorities; and
· My father even did not have a chance to see my poor mother for the last time owing to Communist dictatorship; and
· The basic human rights of my parents have been wantonly ruined.
The Applicant went on to ask, no doubt rhetorically, whether it was the Tribunal’s view that she should keep silent even if they had been persecuted to death. She claimed that she had “never ever” agreed that her application had been assessed fairly and carefully by the Tribunal.
The Applicant’s oral submissions covered essentially the same ground as the particulars in her application. She submitted that:
a)The Tribunal was unfair in assessing her case.
b)The Tribunal breached the requirements of s.424A (1) of the Migration Act.
c)The Tribunal exhibited bias in its decision; and
d)The Tribunal decision was based on unwarranted assumptions.
The Applicant claimed that the Tribunal had wrongly found that she did not sufficient fear and that the decision should be set aside.
The First Respondent’s Submissions
Ms Kelso, solicitor, appeared for the First Respondent, the Minister for Immigration and Citizenship.
In reply to the Applicant’s first ground, Ms Kelso submitted that the Tribunal did not reject the Applicant’s claims solely by reason of her failure to provide evidence to substantiate her claims, but made adverse credibility findings based only partly on the unsubstantiated nature of her claims. It was for the Applicant to advance whatever evidence or arguments she wished to make in support of her claims.
It was within the Tribunal’s jurisdiction to make findings about the weight to be given to the Applicant’s evidence or arguments (Abebe v The Commonwealth[26] at [187]). The Tribunal was not obliged to accept uncritically all or any of the Applicant’s claims (Randhawa v Minister for Immigration and Ethnic Affairs[27] at 451).
[26] (1999) 197 CLR 510
[27] (1994) 52 FCR 437
The Applicant was expressing disagreement with the Tribunal’s factual findings, including weight of evidence, but this was a matter for the Tribunal.
As to the Applicant’s second ground, Ms Kelso submitted that the Applicant had not provided any evidence to show that there had been an error in interpretation of her evidence at the first Tribunal hearing.
It was further submitted that the Tribunal did not breach the requirements of s.424A (1) of the Act, because doubts, inconsistencies or the absence of evidence cannot constitute “information” for the purpose of the section (SZBYR v Minister for Immigration and Citizenship[28] at [18]). In the alternative, the Tribunal relied on the Applicant’s own evidence and its assessment of it, which falls within the exceptions in s.424A (3)(b) or (ba).
[28] (2007) 235 ALR 609;[2007] HCA 26
In respect of the Applicant’s third ground, Ms Kelso submitted that an allegation of bias should be distinctly made and clearly proved, but no evidence of apprehended bias has been shown. Again, the further allegation of a breach of s.424A (1) has not been made out. The Applicant did not identify any “information” of a kind referred to in s.424A (1).
As to the Applicant’s third ground, Ms Kelso submits that the particulars provided make it difficult to understand the precise nature of the ground of review. The allegations that the Tribunal failed to consider specific claims are unfounded.
In reply to the Applicants’ fifth ground, making a further allegation of apprehended bias and “unwarranted assumption”, Ms Kelso submits that these particulars simply re-agitate the Applicant’s claims for a protection visa and to not demonstrate any jurisdictional error.
In summary, it was submitted that no jurisdictional error in the Tribunal’s processes or reasoning were identified and the application should be dismissed with costs.
Submission in Reply
In reply, the Applicant told the Court that she believed her evidence to the first Tribunal was consistent with her evidence to the second Tribunal. She said that the interpreter at the first hearing had been angry with her and at times spoke in a loud or aggressive voice.
Conclusions
The Applicant claims in her first ground that the Tribunal failed to consider her claims properly and fairly. She takes issue with the fact that the Tribunal found that her claims were unsubstantiated, but this is no more than a challenge to the Tribunal’s factual findings. The weight to be given to any piece of evidence is a matter for the Tribunal.
The Applicant’s challenge to the Tribunal’s finding that the death certificates did no more than establish that they died of natural causes is an attempt to persuade the Court to engage in a review of the factual merits of the decision, which is not open to the Court on judicial review.
Findings of fact are matters for the Tribunal. In this case, the Tribunal made a factual error when dealing with the copy of the summons that the Applicant produced to the second Tribunal hearing[29]. The Tribunal referred to the summons as if it were directed to the Applicant:
It also appears anomalous and impractical that the Applicant would be expected to appear for ‘interrogation’ in Fuqing at 9 AM on the same day that the summons was issued.[30]
[29] Court Book 97-98
[30] Court Book 124 at [61]
The fact is that the summons is not directed to the Applicant at all. A reading of the document that it is not the Applicant who was required to attend for interrogation at all, but another person. A reading of Part B of the protection visa application shows that the name of the person on the summons is that of the Applicant’s husband.[31] The Applicant’s name does not appear on the summons at all. The only other person referred to in the summons is Lin Xiu Qin, a person referred to by the Applicant as an organiser of a protest in February 2007.[32]
[31] Court Book 4
[32] Court Book 119 at [37]-[38]
It is no error of law simply in making a wrong finding of fact (Abebe v The Commonwealth[33] per Gummow and Hayne JJ at [137]). It is certainly not a jurisdictional error. In this case, the factual error has no bearing on the decision of the Tribunal, which expressed its doubts about the veracity of the document for other reasons and relied on Independent Country Information which referred to the ready availability of false documents in China.
[33] (1999) 197 CLR 510; [1999] HCA 14
The Applicant’s first ground of review is essentially a challenge to the Tribunal’s factual findings and does not demonstrate any jurisdictional error.
The Applicant’s second ground of review claims that the committed a breach of s.424A (1) of the Migration Act. It is well established that identification of a discrepancy or contradiction does not attract an obligation under s.424A (1) because a discrepancy does not constitute “information” for the purpose of the section.
In any event, the Tribunal was comparing the evidence given by the Applicant at the first Tribunal hearing with that given at the second hearing. This evidence falls within the exception in s.424A (3)(b) of the Act.
The Applicant has complained of a failure by the interpreter at the first Tribunal hearing. She has provided no evidence of any such failure.
The Applicant’s second ground of review does not establish any jurisdictional error on the part of the Tribunal.
The Applicant’s third ground complains of a reasonable apprehension of bias.
The Applicant complains that the Tribunal did not, in her view, have a basic knowledge about the household register in China, so that she believes that the Tribunal did not understand that people who are on the “agricultural household register” are commonly referred to as “farmers”, even though they may not do any farm work.
This does not relate to bias, either apprehended bias or actual bias. An allegation of bias, or lack of good faith, is a serious allegation. It is not to be lightly made and must be clearly alleged and proved (SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[34]at [43].
[34] [2002] FCAFC 361
The test for apprehended bias has been set out in Re Refugee Review Tribunal; Ex parte H[35] at [27]-[28]. Essentially, the test is whether a fair-minded lay observer who is properly informed as to the nature of the proceedings and the matters in issue might reasonably apprehend that the Tribunal may not bring an impartial mind to the resolution of the question to be decided.
[35] (2001) 179 ALR 425; [2001] HCA 28
Nothing has been shown to indicate that there is any reasonable apprehension of bias and the Applicant’s third ground fails.
The fourth ground in the application claims that the Tribunal made its finding based on nothing apart from its unwarranted assumption.
The Applicant does not specify what that unwarranted assumption might be. She refers particularly about the Tribunal’s findings[36] about her being able to leave China on a genuine passport in her own name without hindrance from the authorities. It was open to the Tribunal to make this finding on the evidence.
[36] at paragraph 68 at page 125 of the Court Book
The Applicant also referred to the Tribunal’s finding that it was implausible for someone in the Applicant’s position to delay for some six weeks after she arrived in Australia before she applied for a protection visa[37]. This also was an inference that was open to the Tribunal on the evidence.
[37] Court Book 125 at [69]
In the particulars of this ground the Applicant claims that the Tribunal failed to consider her claims and her particular difficulties when she arrived in Australia. There is no evidence of that. A reading of the Tribunal Decision Record does not show that the Tribunal failed to consider any of the Applicant’s claims.
The Applicant’s fourth ground has not been made out.
The fifth ground in the application is a combination of the third and fourth grounds, apprehended bias and making a finding based on an unwarranted assumption. These grounds have been dealt with already.
The Applicant’s fifth ground has not been made out.
The Applicant has not demonstrated any jurisdictional error. Mindful that the Applicant was not legally represented at the hearing before this Court, I have considered whether there is any other arguable ground of jurisdictional error.
There is no breach of s.425 of the Act. The Tribunal invited the Applicant to attend a hearing, which she did, with a mandarin interpreter. Her complaints about interpretation relate to the interpreter at the first hearing, not the one currently under review.
The letter inviting the Applicant to the hearing complied with s.425A of the Act, giving the Applicant notice of the day on which she was scheduled to appear and the time and place. The notice was sent to the Applicant’s migration agent, as the Applicant directed in Section C of her Application for Review.[38]
[38] Court Book 51
The letter to the Applicant was dated 11th September 2008 and invited her to attend a hearing on 7th November 2008. Thus, the period of notice was more than the prescribed period.
Finally, the letter advised the Applicant of the effect of section 426A of the Act.[39]
[39] Court Book 87
I am unable to discern any jurisdictional error. The Tribunal decision is a privative clause decision (s.474(2)). It is therefore final and conclusive and not subject to any of the orders sough by the Applicant, being mandamus, declaration and certiorari (s.474(1)).
The application will be dismissed.
I will hear submissions as to costs.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 28 April 2009
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