SZNGH v Minister for Immigration

[2009] FMCA 556

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNGH v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 556

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 424A(1); 424A(3)(a); 424A(3)(b); 424A(3)(ba); 424AA; 425; 474; pt.8 div.2

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 162 ALR 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63

Applicant: SZNGH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 385 of 2009

Judgment of: Emmett FM

Hearing date: 1 June 2009

Date of last submission: 1 June 2009

Delivered at: Sydney

Delivered on: 16 June 2009

REPRESENTATION

Applicant appeared on his own behalf

Counsel for the Respondent: Mr M. Cleary

Solicitors for the Respondent: Ms J. Dinihan, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 385 of 2009

SZNGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 20 January 2009 and handed down on 21 January 2009.

2. The applicant claims to be a citizen of the People’s Republic of China (“China”) and previously to have been a clandestine political activist in China (“the Applicant”).

3. The issue in this matter is whether or not the Tribunal gave proper regard to corroborating documentary evidence provided by the Applicant and whether it approached its task in a manner indicating apprehended bias.

4. The Applicant arrived in Australia on 11 July 2008, having departed legally from Baiyun on a passport issued in his own name and an entertainment visa issued on 30 June 2008.

5. On 14 July 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.

6. On 18 September 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa. 

7. On 17 October 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. 

8. On 20 January 2009, the Tribunal affirmed the decision of the Delegate not to grant a protection visa. 

9. On 18 February 2009, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision. 

Legislative framework

1. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”). 

3. Australia has protection obligations to a refugee on Australian territory.

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

1. In his protection visa application, the Applicant claimed that on 10 October 2007 his father, a rice farmer in China, was notified that the land he had leased for farming had been sold and his father would be provided with compensation. The Applicant claimed that the compensation offered to his father was “unfair”. The Applicant stated that his father sought to lodge an application with the Fuqing City People’s Court, however, his application was refused by the court. The Applicant stated that his father then decided to go to Beijing to lodge his appeal with the National People’s Congress.

2. The Applicant claimed that on 6 January 2008 his father was arrested as a trouble maker at Fuzhou on his way to Beijing and was detained at the Fuqing detention centre for 50 days.

3. The Applicant claimed that the Public Security Bureau (“the PSB”) did not notify his mother about his father’s arrest until 9 January 2008. Thereafter, the Applicant claimed that he and his mother had approached the PSB on at least ten occasions. In particular, the Applicant identified 6 February 2008 as the Chinese New Year’s Eve when he and his mother approached the PSB to release the Applicant’s father even if only just for that one night. The request was refused. The Applicant claimed that on 13 February 2008 he and his mother again went to the PSB they had been told that the PSB had to release the Applicant’s father within 37 days, according to relevant laws in China, and that time had now expired. However, the Applicant stated the police refused to release his father or to allow the Applicant or his mother to see him.

4. The Applicant claimed that on 25 February 2008 the PSB notified the Applicant’s family that the Applicant’s father had died from cancer at the detention centre, having been detained for 50 days. The Applicant stated that the police refused to provide the family with any medical evidence and that he and his family did not believe that his father had suddenly died from cancer.

5. The Applicant stated that, thereafter, he organised twelve young people to prepare anti-government slogans in the Fuqing area and from March to June 2008 organised “to secretly post about 1,000 post[ers] in Fuqing area.” The Applicant stated that on 12 June 2008 he organised for a secret posting of the slogans for the last time. Thereafter, the Applicant stated that he went into hiding until his travel to Australia on 11 July 2008.

6. The Applicant claimed that since leaving China two of the young people who assisted him in his activities in preparing and posting slogans had been subjected to the PSB in China. The Applicant stated that he feared that he would be discovered as the organiser of those activities by police and that he would be persecuted by the Chinese authorities, if he were to return to China.

The Delegate’s decision

1. On 3 September 2008, the Applicant attended an interview with the Delegate.

2. On 18 September 2008, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.

3. The Delegate noted that the Applicant had not provided any detailed evidence to substantiate any of the events in his claims and, for reasons it gave, found many of his claims to be “implausible”.

4. The Delegate was not satisfied that the Applicant was of any interest to Chinese authorities for a Convention related reason at the time of his departure from China or that there was any evidence to indicate that the Applicant would be of interest to authorities for a Convention related reason in the reasonably foreseeable future if he were to return to China.

The Tribunal’s review and decision

1. On 17 October 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. On 5 November 2008, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 15 December 2008 to give oral evidence and present arguments.

3. On 15 December 2008, the Applicant attended the Tribunal hearing and gave evidence.

4. The Tribunal summarised the written claims made by the Applicant.

5. The Tribunal noted that on 15 December 2008, at the commencement of the hearing, the Applicant provided two documents in support of his claims. The first being a document purportedly from the hospital where his father was taken on 25 February 2008 by the PSB and allegedly died of cancer. The Tribunal noted that the letter, dated 16 October 2008, stated that for access to documents the family should contact the local PSB. The second letter, dated 10 October 2007, was a document that referred to the sale of the Applicant’s father’s farming land.

6. The Tribunal noted that the Applicant told the Tribunal that the two documents “reflect the unfairness of the Communist Party and its dictatorship.” The Tribunal noted that it put to the Applicant that document fraud in China is widespread and that the Tribunal would consider the weight that it would place on the documents.

7. Thereafter the Tribunal explored the Applicant’s claims with him and noted matters of concern that it put to the Applicant arising from his evidence and noted the Applicant’s responses. In particular, the Tribunal identified matters that it found in the Applicant’s oral evidence to be inconsistent with the Applicant’s written claims.

8. The Tribunal noted that it asked the Applicant if he had anything further to say at the conclusion of the hearing and noted that the Applicant believed that the Delegate’s refusal to grant him a protection visa was as a result of a “cultural barrier and/or language barrier.”

9. The Tribunal noted that it asked the Applicant if he needed anymore time to comment or respond to information that he had been given in the course of the hearing and which the Tribunal had considered may be a reason for affirming the decision under review. The Tribunal noted that the Applicant did not request any further time, although said that he was “a little bit nervous and confused”. The Tribunal noted that the Applicant concluded by saying he would die if he were to return to China.

10. The Tribunal was not satisfied by explanations proffered by the Applicant as to various inconsistencies in his oral and written claims which were put to him during the hearing by the Tribunal. The Tribunal considered the Applicant’s claim to have been anxious and nervous, however, found that it was not sufficient to address the evidentiary concerns identified by the Tribunal.

11. In relation to the Applicant’s documents, the Tribunal did not accept that they contained truthful evidence or accurate information and, accordingly, the Tribunal did not give them any weight.

12. The Tribunal found that the Applicant had not provided any documents to support his claims that his father had been arrested and/or detained by Chinese authorities.

13. The Tribunal did not accept that the Applicant or any member of his family had suffered any of the harm claimed or that the Applicant came to Australia in order to escape persecution from the Chinese authorities. The Tribunal also rejected the Applicant’s claims that his father had died at the detention centre and that police had refused to provide the Applicant’s family with medical evidence. The Tribunal was not satisfied that the Applicant had “any political opinions against the Communist dictatorship” or that he posted slogans as alleged.

14. Ultimately, the Tribunal comprehensively rejected all the Applicant’s written claims and further oral claims made at the hearing. The Tribunal was satisfied that if the Applicant was to return to China he would not engage in “any actual and/or imputed anti-regime activities, not out of fear, but out of a lack of genuine interest in such activities.”

15. Accordingly the Tribunal affirmed the decision under review.

The proceeding before this Court

1. The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.

2. The Applicant was referred to the Court’s legal advice scheme for free legal advice and has participated and received legal advice.

3. At the commencement of the hearing before this Court, the Applicant confirmed that he relied only on the ground contained in the amended application filed on 24 April 2009 as follows:

   “1. The Tribunal’s decision was affected by apprehended bias.

   Particulars

   The Tribunal gave weight to minor and irrelevant discrepancies between an earlier statement made by the Applicant and his evidence at hearing. On the other hand, it dismissed a document showing that the applicant’s father had been taken to hospital by the police and that all enquiries about him should be directed to the police, saying that a “conceptual leap” was required to conclude that he had been arrested. A reasonable observer could have formed the view that the Tribunal was intent on finding any justification for not believing the Applicant’s claims, and did not have an open mind in the way it considered the evidence before it.”

4. The Applicant confirmed that he had filed no evidence or submissions in support of the ground of the amended application.

5. There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 9 March 2009 the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was directed to ensure than any such transcript was verified by affidavit. The Applicant was also directed to give notice if he wished to rely on tapes of the hearing, however, no step was taken by the Applicant to file or tender any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.

6. To the extent that the ground of the amended application alleges bias by the Tribunal against the Applicant, such a claim is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the Applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).

7. A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71]-[72], [127]).

8. A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than open with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).

9. At the heart of the Applicant’s complaint in his amended application is that the Tribunal gave no weight to the document purportedly from the hospital recording his father’s death from cancer on 25 February 2008. In relation to the hospital record, the Tribunal found that “it would be a conceptual leap to conclude, based on the document that his father had been arrested as claimed.” That finding was open to the Tribunal on the evidence and material before it and for the reason it gave. There was nothing in the hospital record that could support the Applicant’s claims of the reasons why his father was arrested and detained. At the heart of the Applicant’s claim of a fear of persecution by authorities in China was his activities in preparing and distributing anti-government slogans arising from what the Applicant claimed to be the corrupt actions by police in arresting and detaining his father for 50 days because his father sought to appeal the level of compensation he had been given following the sale of the land that he had farmed. The hospital record could not prove those facts.

10. The Tribunal, in any event, gave the Applicant’s documents no weight because of the ease with which fraudulent documents could be obtained in China. However, as stated above, even if the Tribunal had accepted the documents as authentic, they do not, by themselves, corroborate the Applicant’s reasons for the arrest and detention of his father and the Applicant’s subsequent anti-government activities.

11. At the heart of the Tribunal’s adverse findings, was the number of inconsistencies in the Applicant’s written and oral claims which the Tribunal found not to be satisfactorily explained by the Applicant. Significantly, the Tribunal noted that the Applicant made a claim for the first time of having been beaten by police on an occasion that he sought to visit his father whilst in detention and that such claim was omitted from the Applicant’s written claims in support of his protection visa application. The Tribunal was not satisfied by the Applicant’s explanation that he had thought he would have other opportunities in which to provide further information as and when it became necessary.

12. Whilst minds may differ as to the findings that a decision-maker may make about various factual claims, unless there was no evidence to support any such finding or that such a finding was not reasonably open on the evidence and material before the Tribunal, such that no decision-maker acting reasonably could have made such a finding, there is no error in the Tribunal’s decision going to its jurisdiction. (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680).

13. It is not for this Court to conduct merits review and, indeed, the Court has no jurisdiction to do so (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1).

14. The Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. The Tribunal provided reasons for its findings. The findings made by the Tribunal were not of a nature that one could conclude were not open to the Tribunal.

1. Further, it is a matter for the Tribunal the weight that it gives evidence and material before it. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

2. It was open to the Tribunal to prefer information before it that suggested that fraudulent documents in China were readily obtainable and for it to prefer that information to the Applicant’ evidence that his documents were genuine. It is a matter for the Tribunal the country information to which it has regard and the weight it gives that information (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 at [11]).Again, in the circumstances, that finding was open to the Tribunal on the evidence and material before it and for which it provided reasons.

3. Accordingly, the allegation of bias or apprehended bias is rejected.

Other claims

1. Whilst the Applicant made allegations in his initiating application filed on 18 February 2009 of a breach of ss.425, 424A and 424AA of the Act, those complaints were not maintained at the hearing before this Court and the Applicant confirmed to the Court that they had been abandoned. In any event, a fair reading of the Tribunal’s decision record makes clear that there was no evidence relied upon by the Tribunal that enlivened the obligations of s.424A(1) of the Act. The reason for the Tribunal’s adverse findings was based on information provided to it by the Applicant in support of his review and upon information that was not specifically about the Applicant, rather, was about a class of persons of which the Applicant is one. Such information is excluded from the obligations of s.424A(1) of the Act by reason of ss.424A(3)(a), 424A(3)(b) and 424A(3)(ba) of the Act.

2. In relation to s.425 of the Act, the Tribunal invited the Applicant to come to a hearing and the Applicant attended that hearing. A fair reading of the Tribunal’s decision record makes clear that any issue to which it had regard and which formed part of its reasons for affirming the decision under review was put squarely to the Applicant at the hearing and the Applicant was invited to comment. On each occasion, the Tribunal noted the response made by the Applicant to those concerns. Moreover, in respect of each of the concerns, a fair reading of the Tribunal’s decision record makes clear that the Tribunal put to the Applicant that the concerns it had may lead it to have doubts as to the veracity and truthfulness of the Applicant’s claims.

3. Accordingly, there was no issue that was not raised by the Tribunal with the Applicant in a manner that did not provide the Applicant with an opportunity to respond (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ AT [35], [37] and [47]).

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

2. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  15 June 2009