SZNFP v Minister for Immigration
[2009] FMCA 305
•30 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNFP v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 305 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision refusing to grant a protection visa to the applicant – applicant is a citizen of the People's Republic of China claiming fear of persecution by local Municipal Government and police as a result of protesting against taxes and levies applied to businesses – credibility – no reviewable error. |
| Migration Act 1958 (Cth), ss.422B, 424A, 425, 474 |
| SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 referred to SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [18] referred to SZLWI v The Minister for Immigration & Citizenship [2008] FCA 1330 referred to SZBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 358 cited |
| Applicant: | SZNFP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 289 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 30 March 2009 |
| Date of Last Submission: | 30 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 30 March 2009 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondents: | Mr Shariff |
| 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 $4400.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 289 of 2009
| SZNFP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The applicant who is a citizen of China has applied to the Court for review of a decision of the Refugee Review Tribunal. The decision was signed on 12 January 2009 and handed down on that day. Even though I note that on the front page of the decision record the date is wrongly given as 12 January 2008[1]. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection (Class XA) visa.
[1] See Court Book at page 135
The applicant asks the Court to first make a declaration that the Tribunal decision was invalid and contrary to law, second make an order that the Tribunal decision be quashed or set aside and third remit his matter to a differently constituted Tribunal to be determined in accordance with law.
I note that Order 2 in the application refers to an order relating to:
The decisions and each of them.
However there is only one decision that is the subject of review and that is the decision of the Refugee Review Tribunal. The Tribunal has already reviewed the decision of the delegate. Order 3 in the application asks that the matter be remitted to:
A differently constituted Tribunal.
I have said on many occasions before that it is doubtful to say the least that the Federal Magistrates Court has the power to make an order of that nature. It is for the principal member of the Refugee Review Tribunal to determine the constitution of the Tribunal for the purposes of particular review. True it is that the Court has the power to remit an application to the Tribunal by way of an order of mandamus but the Full Court of the Federal Court has cast considerable doubt on the proposition that the Federal Magistrates Court has any power to make any order that the Tribunal be:
Differently constituted[2].
[2] See SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107
It has been explained to the applicant that in order to make the orders that he seeks or grant relief generally, the Court must be satisfied that the Tribunal decision is affected by jurisdictional error.
Background
The background to this matter is that the applicant arrived in Australia and applied for a protection (Class XA) visa on 14 July 2008. He provided a statement in answer to questions 41, 42, 43 and 44 of his application in which he set out why he left China and why he seeks protection in Australia.
He claimed to have been involved in running a slaughter house in conjunction with his brother-in-law who gave him some shares in the business so that the two of them were shareholders. He complained that they had to operate under a huge burden of levies and taxes and that as the price of commodities went up the profit of the business went down but they were still faced with a heavy burden of levies or taxes. He complained about corrupt officials from the Taxation Bureau, the Industry and Commercial Administration Bureau and even the Public Security Bureau. The applicant felt that they could not keep silent about this heavy burden and organised a number of private businessmen to urge the government to reduce or do away with levies or taxes. He claimed that in January 2007 he organised some private businessmen who had run pig farms, cattle farms, meat shops or restaurants to approach relevant government agencies to urge the government to reduce or do away with various levies and taxes and to urge the government to clean up corruption. This proved to be unsuccessful.
In March of 2007 he claimed that he organised some private businessmen to make further approaches to the Fuqing Municipal Government making complaints about the burden of levies and taxes. This was unsuccessful and he claimed that in May 2007 he organised about 60 to 70 private businessmen to hold a sitting protest. He then led those businessmen to march to the municipal government, however they were stopped from doing that and he was arrested and detained by the police for more than two months. During that time he claimed to have been subjected to physical and mental persecution and was cruelly tortured by the police. He complained that after he was released, which was brought about by the intervention of his brother-in-law who bribed the police and local officials he was constantly harassed by the police and was required to report to the police station twice a month and was also required to do some jobs without any income as a means of punishment, such as repairing the road or cleaning police stations or cleaning government office buildings. He claimed that as a result he left China with the aid of his brother-in-law.
A delegate of the Minister invited the applicant to attend an interview. That interview took place on Thursday 4 September 2008 with the assistance of a Mandarin interpreter. On 8 September the Minister's delegate refused the application for a visa. The delegate said in the protection (Class XA) visa decision record that the applicant was unable to substantiate the claim he made at the interview that he organised 60 to 70 businessmen and led a protest march. The delegate described the responses as:
His responses were characteristic of a rehearsed story having been learned specifically for the interview[3].
[3] See Court Book at page 68
The delegate did not accept that the applicant was arrested and detained for two months because the applicant was unable to describe the events leading up to his arrest in sufficient detail. The delegate did not accept the applicant's explanation as to how he was able to obtain a passport, secure his release from detention and obtain a visa as part of an opera troop to visit Australia, all of which he said had been organised by his brother-in-law. The delegate said:
I commented at interview that his brother-in-law sounded like a truly remarkable individual, however I was not prepared to accept this explanation without any further detail to substantiate it[4].
[4] See Court Book at page 69
Refugee Review Tribunal
After the application for a protection visa was refused, the applicant applied to the Refugee Review Tribunal on 9 October 2008 for review of the delegate's decision. The applicant did not provide any additional documents to the Tribunal at the time of the application. The Tribunal wrote to the applicant and invited him to attend a hearing initially scheduled to take place on 21 November 2008 but later postponed to 10 December in that year. The applicant attended that hearing and gave evidence with the assistance of a Mandarin interpreter.
Prior to the hearing on 8 December the applicant's migration agent provided a number of documents to the Tribunal in support of the applicant's case. They included certified copies of the following.
i)A detention certificate;
ii)A certificate of releasing from detention;
iii)A letter written by the applicant's cousin as evidence that the applicant's wife was currently in a different province and was in a difficult situation; and
iv)A certified copy of an interrogation record of interview relating to an interview between the applicant's mother and the police in Fuqing municipality Jianjing town police substation.
The applicant attended the hearing and gave oral evidence and during the hearing the Tribunal member raised a number of issues with the applicant and questioned him about documents and photographs which he had provided. The Tribunal handed down is decision on 12 January 2009 and a copy of the Tribunal decision record can be found in the Court book at pages 135-160. The Tribunal also released a corrigendum correcting the error in the date to which I have referred.
In the Tribunal decision record the Tribunal summarised the applicant's claims and evidence taken from his protection visa application and noted the applicant's passport and provided a summary of the interview between the applicant and the Minister's delegate on 4 September 2008. The Tribunal also provided a detailed summary of the applicant's evidence to the Tribunal which can be found in the Court book at pages 144-151. The Tribunal also considered independent country information under the following headings;
i)Passports;
ii)What checks are done at the airport;
iii)The extent to which PSB records are nationally computerised;
iv)Availability of fraudulent documents in China;
v)PSB documents.
RRT Decision
In its findings and reasons the Tribunal accepted that the applicant has Chinese nationality based on the applicant's application for a protection visa, his passport, his evidence at the hearing and the absence of any contrary indications. The Tribunal set out a summary of the applicant's claims and noted that those claims centred on the applicant's involvement in a business partnership which conducted an abattoir. The Tribunal noted that the applicant claimed as a result of problems in the business that the applicant agitated against the authorities and was ultimately detained for some two months in 2007 and later suffered ongoing harassment.
However, the Tribunal had this to say about the applicant's credibility:
However, at the hearing the applicant's evidence together with the Tribunal's observations concerning the very documents and information he had provided raised strong concerns that he is not a credible witness and that his claims are concocted. At the hearing he showed no knowledge of a residential building being constructed into the abattoir site and denied this was so even in the face of a photo to the contrary. His claim the photographed abattoir is an ongoing operation, is contradicted by the very photos he provided. He improvised evidence when information was put to him. The abattoir is central to his claims and his evidence concerning the business leads the Tribunal to conclude that the applicant is not a credible witness. The applicant's lack of credibility leads the Tribunal to reject all of his claims concerning incidents concerning him in China[5].
[5] See Court Book at page 155, paragraph 35
The Tribunal then set out its reasons for that finding. Those reasons related to the implausibility of the applicant's account and the applicant's lack of knowledge of major parts of this claim, the reasons included the Tribunal's doubts about the documents that the applicant has provided including photographs and the documents submitted by the applicant's migration adviser on 8 December. The Tribunal noted that it was easy to obtain in China fake documents and found that the applicant's story was fabricated and that he was not a credible witness and gave no weight to the certificates.
The Tribunal also noted the long delay between the applicant's obtaining his passport and the time that he obtained his visa to come to Australia. That as the Tribunal said:
The long delay as he waited for his Australian visa leads the Tribunal to conclude he did not depart China with any urgency. This reinforces the Tribunal's conclusion that the applicant did not depart China because of the fear of persecution[6].
[6] See Court Book at page 158 at paragraph 50
The Tribunal found the applicant was not a credible witness and found that he had fabricated his story for the purposes of claiming refugee status. Accordingly the Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa.
The applicant commenced proceedings in this Court by filing an application and an affidavit on 9 February 2009. He has not filed any other documents in the Court. The Minister filed a response opposing the application on 18 February 2009 and a detailed outline of submissions on 25 March. The applicant sets out detailed grounds in support of the relief that he claims. Those grounds cover some four pages of the application and are numbered 1 to 8. It is fair to say that the grounds numbered 1 to 8 contain a fair amount of repetition and to some extent are drafted in the form of a submission. Essentially the claims are:
i)That the Tribunal failed to comply with its obligations under s.424AA and s.424A and s.425 of the Act.
ii)The Tribunal did not at the hearing or after the hearing clearly inform the applicant or ensure him to understand that it did not accept his explanation relating to certain photographs that he had produced, but rather the Tribunal led him to believe that this explanation had been understood and completely accepted.
iii)Neither at the hearing nor after the hearing did the Tribunal inform the applicant or ensure that he understood that it regarded information relating to the applicant's explanations about certain photographs as a reason or part of the reason for affirming the decision that was under review so that the applicant had been denied an opportunity to comment or respond to particulars of the information.
iv)The matters contained in ground 4 consists entirely of a quote of paras.42-47 of the Tribunal's decision.
v)The applicant complains that the Tribunal did not advise him and ensure that he understood that six pieces of information had not been accepted. They include,
1. concerns about photographs that the applicant had provided that are already covered in the earlier grounds;
2. why the applicant's name did not appear on the relevant business or taxation registration;
3. the Tribunal declined to make inquiries on the internet in support of the applicant's claim but waited for him to provide further documentary evidence;
4. that the Tribunal considered that the applicant's cousin's letter was inconsistent with his claims and those inconsistencies have not been explained;
5. there was no information that it was a procedure of the Public Security Bureau to provide an interrogation interview record;
6. that the Tribunal has given particular and presumably inappropriate weight to information from the Department of Foreign Affairs and Trade about the high incidence of fraudulent documentation in China and the ease of obtaining fake documents.
vi)Ground 6 contains a claim of breach of ss.424AA and 424A of the Act.
vii)Ground 7 contains a claim of a breach of s.425 of the Act where the applicants says that the Tribunal must allow the applicant to give evidence but also present arguments relating to the issues arising and in his case he claims that the Tribunal failed to create a genuine opportunity for him to present arguments relating to the issues arising in relation to the decision under review.
viii)The applicant's eighth ground contains a closing comment that the applicant believed there was an error of law in the Tribunal's decision constituting jurisdictional error and that there was procedural error in the Tribunal's decision constituting an absence of natural justice.
The applicant has not provided any other written submission but addressed the Court in support of his application in which he complained about the Tribunal's failure to give weight to the photographs and documents that he submitted and complained that the Tribunal's decision was unfair and affected by bias. He claimed in support of the claim of bias that the Tribunal had ignored or given a negative opinion about certain evidence that the applicant had provided including the interrogation record of interview and he claimed that the bias arose from the Tribunal's lack of knowledge.
Counsel for the respondent Minister submitted that the Tribunal had put these issues to the applicant and that there was no evidence of apprehended bias or in fact bias of any sort and submitted that the claims of bias were largely based on the fact that the Tribunal had not ruled in the applicant's favour.
It is perhaps more helpful to deal with the issues raised by the applicant rather than referring to specific grounds because as I think I have already made clear some of the matters referred to as grounds in the application do not contain any ground of review at all and there is a considerable amount of repetition and duplication in respect of the errors alleged in various grounds.
The applicant has complained that the Tribunal failed to comply with the requirements of three sections, s.424A of the Migration Act, s.424AA and s.425. As counsel for the Minister submits, neither ss.424A or 424AA were enlivened in the present case. Material relied on by the Tribunal came from three sources:
(1)the applicant's own evidence or information within his own application for a protection visa;
(2)independent country information; and
(3)inconsistencies in the applicant's evidence and the rejection of aspects of the applicant's evidence.
As to the first of those matters, the information that came from the applicant, either at the hearing or in connection with his application for a protection visa that information is excluded under the provisions of subsections 424A(3)(b) and 424A(3)(ba). I am referred to the decision of SZMJE v Minister for Immigration & Citizenship [2008] FCA 1751 at [22] and SZLOJ v Minister for Immigration & Citizenship [2008] FCA 1693 at [15]. Each of those paragraphs refers to information lodged by an applicant in support of his visa application and as Siopis J said in SZMJE:
Further, there was no obligation on the Tribunal under s.424A to call for comment from the applicant on the written statement which he had lodged in support of his visa application because that was information which fell within the ambit of sub-s.424A(3)(ba) of the Act.
In my view, with the greatest of respect, that applies to the situation in the decision under review by this Court.
It is also well established that independent country information falls within the exception contained in subsections 424A(3)(a) of the Migration Act. The Tribunal also referred to inconsistencies in the applicant's evidence and the fact that it just did not accept some parts of the applicant's evidence. These do not enliven s.424A of the Act.[7]
[7] See SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [18]
As to the operation of s.424AA of the Act it is not a section which imposes an obligation upon the Tribunal. Again, to quote from Siopis J in SZMJE v Minister for Immigration & Citizenship at para.22:
In my view s.424AA is a discretionary section which was not engaged in this case[8].
[8] [2008] FCA 1751 at paragraph 22
I have also been referred to the decision of Gilmore J in SZLWI v The Minister for Immigration & Citizenship [2008] FCA 1330 where his Honour said at para.19:
Section 424AA does not impose any obligation on the Tribunal. It enables 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 sub-s.424(1). SZMCD v The Minister for Immigration & Citizenship [2008] FMCA 1039 at [56]. If the Tribunal chooses to give oral particulars of information under s.424AA but fails to comply with the requirements of s.424AA(b) the consequence is not that it falls into jurisdictional error. The consequence is that s.424A(2)(a) is not engaged.
The applicant has also claimed that the Tribunal failed to comply with s.425 of the Migration Act. It is quite clear that the Tribunal invited the applicant to attend a hearing and gave an appropriate invitation which complied with s.425A. The applicant did attend the hearing. He gave oral evidence with the assistance of an interpreter. It is clear from the Tribunal's summary of the applicant's evidence that it took the applicant through a number of issues and raised its concerns with the applicant at the hearing and gave him the opportunity to comment or explain. The applicant had already been put on notice by the decision of the delegate that his claims and his evidence were not regarded as credible and there is no suggestion from the Tribunal decision record that an issue was raised with the applicant for the first time which the applicant would not have been expecting. In my view there is no breach of s.425 of the Act as set out by the High Court in SZBEL v The Minister for Immigration & Multicultural & Indigenous Affairs (2004) 228 CLR 152 at [43].
It is not the case that there was any obligation to provide particulars of information which allowed the applicant to make a written reply after the hearing. There was no information upon which the Tribunal relied to call for such a procedural to be adopted because the information came from the applicant or independent country information or the Tribunal's thought processes about the applicant's evidence, which in the Court processes are not of course information at all. It is well established that the Tribunal is not required to provide a running commentary upon what it thinks about the applicant's evidence[9]. I am satisfied that the Tribunal did make it quite clear that it had certain concerns about the applicant's evidence and the applicant was given a sufficient opportunity at the hearing to explain his evidence and meet the Tribunal's concerns. He was not entitled to anything else.
[9] See SZBEL v Minister for Immigration & Indigenous Affairs (2004) 228 CLR 152 at para 48
The applicant has brought a general claim that in some way the Tribunal decision was not fair and that he was denied a procedural unfairness. It is well established that procedural fairness or natural justice at common law does not apply, s.422B of the Act provides that div.4 of pt.7 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule and there is no evidence that the Tribunal departed from the requirements of any of the sections contained in Div.4 of Part 7.
The applicant has also raised at the hearing today a claim of what appears to be apprehended bias. Bias generally is a serious application. It must be strictly alleged and strictly proved and indeed it is rare that evidence of bias is found purely from the Tribunal decision record[10].
[10] SZBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 358 and SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
The test for apprehended bias can be found in Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 at [27] and [28]. In that decision their Honours said:
[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 held in public. There is some incongruity in formulating a test in terms of, "a fair mind 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 matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation there is in our view no reason to depart from the objective test and 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 and actual bias by requiring substantially the same proof.
In applying that test it is clear that there is nothing to suggest that the Tribunal did not bring an impartial mind to the resolution of the question to be decided. The fact that the Tribunal came out with a decision that is adverse to the applicant is not of itself evidence of any bias and the applicant's claim of bias arising from ignorance of the situation in China is an argument that cannot be sustained. There is no evidence of bias, either actual bias or apprehended bias and this claim must fail.
The fact is that no jurisdictional error has been made out. I am mindful of the fact that the applicant is not legally represented in these proceedings although he has had the benefit of legal advice from a barrister who is a member of the Refugee Review Tribunal legal advice panel because the Court file contains a certificate from the barrister concerned. Even so the applicant did not have representation at the hearing and I have read the Tribunal decision and supporting documents independently of any claims by the applicant or submissions by the 1st respondent in order to ascertain whether there is any arguable case of jurisdictional error. I am not satisfied that there is any jurisdictional error. In the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by subsection 474(2) of the Migration Act. Privative clause decisions are not subject to orders in the nature of certiorari or mandamus or declaration. It follows that the applicant is not entitled to the relief which he seeks and the application will be dismissed.
There is an application for costs on behalf of the 1st respondent Minister. The applicant has not been successful in his claim and in my view there is no reason to depart from the normal practice that the costs follow the event. In other words, a successful party who is legally represented should expect an order for costs. The amount sought which I understand to be inclusive of counsel's fees if $4400. That is comfortably within the scale provided by the Federal Magistrates Court rules and I see no reason to depart from it.
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: 7 April 2009
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