SZNRV v Minister for Immigration
[2009] FMCA 851
•31 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNRV v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 851 |
| MIGRATION – Review of Refugee Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.424A |
| Minister for Immigration v NAMW [2004] FCAFC 330 SZBYR v Minister for Immigration (2007) 235 ALR 609 |
| Applicant: | SZNRV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1488 of 2009 |
| Judgment of: | Driver FM |
| Hearing date: | 31 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 31 August 2009 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms M Palmer Sparke Helmore |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1488 of 2009
| SZNRV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 26 May 2009. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. Background facts relating to the applicant’s claims and circumstances and the decision of the Tribunal are conveniently summarised in the Minister’s written submissions. I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 2.1 through to 2.9 of those written submissions:
The applicant, a citizen of the People’s Republic of China (PRC), submitted written claims to be a refugee which were set out in her protection visa application (“PVA”): Court Book (“CB”) 16-20. The applicant invested in an ant farm in March 2004 and received a dividend for her investment. In October 2007, the applicant’s brother told her that he had not received his dividend on time and neither had many other investors. From 20-22 November 2007 the applicant’s brother and other investors protested in Shenyang seeking payment, however they were informed that the company had gone bankrupt and the protest was suppressed by over 1,000 armed police. As a result of his involvement in the protests the applicant’s brother was detained for three days.
Following his release the applicant’s brother again protested and was arrested on 27 February 2008. The applicant was not informed of her brother’s arrest and on 25 April 2008 she went to the police station with her father. At the police station the applicant and her father were beaten and her father passed away from his injuries. On 30 April 2008, the applicant held a sit in at the police station and was arrested and detained for two months. The applicant claimed that her brother went ‘mad’ as a result of his detention and he committed suicide on 8 August 2008.
In a decision dated 31 January 2009, the delegate of the Minister refused to grant the applicant a protection visa: CB 42-50. The delegate accepted that the applicant’s brother was involved in the protests and that he was arrested, however the Tribunal relied on independent country information noting that the protests were instigated by the head of the Yilishen group who was arrested and jailed. The delegate found that the applicant would not face persecution if she was found to have invested in the scheme and that her ability to leave the PRC legally indicated that she was no concern to the authorities: CB 49.
On 26 February 2009, the applicant lodged an application with the Tribunal for review of the delegate’s decision: CB 52-55.
By a letter dated 16 March 2009, the Tribunal invited the applicant to attend a hearing on 16 April 2009 to give oral evidence and present arguments in support of her case: CB 59- 61.
The applicant accepted the invitation to hearing (CB 63) and attended the hearing on 16 April 2009: CB 65. The applicant provided a copy of her passport to the Tribunal: CB 67-72.
The Tribunal considered the applicant’s claims made to the delegate and the Tribunal and did not accept that the applicant was a credible witness. The Tribunal noted that the applicant had claimed to have memory problems as a result of her ill-treatment in China but in the absence of any medical evidence the Tribunal was not satisfied that the applicant’s emotional upset in the course of the hearing was due to any of the claimed events and was satisfied that she was able to put her case in full to the Tribunal: CB 86.3.
The Tribunal noted that the applicant’s evidence given to the delegate and to the Tribunal was inconsistent, particularly in relation to the amount she had invested in the ant farm (CB 86.9) and when she was notified of her brother’s detention: CB 87.5. The Tribunal also considered it significant that the applicant had provided no corroborative documents in support of her claims to have invested in the ant farm (ie a contract) (CB 87.2) or that she had been detained particularly in light of independent country information indicating that when a person is detained a warrant of detention must be produced: CB 87.6. Moreover, on the basis of independent country information, the Tribunal considered that the fact the applicant was able to leave the PRC without difficulty indicated that she was not of any adverse interest to the Chinese authorities: CB 88.9.
As a result of these findings the Tribunal was not satisfied that the applicant was a person towards whom Australia owed protection obligations: CB 89.5.
The applicant relies upon her show cause application filed on 23 June 2009. I incorporate in this judgment the two grounds in that application:
1. The Tribunal committed jurisdictional error by making its finding which has included a reasonable apprehension of bias.
Particulars
The Tribunal stated at Paragraph 63 in its decision that “In the course of the hearing the applicant cried a lot and she appeared to be upset … In consideration of the evidence as a whole, the Tribunal is satisfied that the applicant’s emotional upset in the course of the hearing, is not due to any of the claimed events…”
According to the Tribunal’s statement at the same paragraph, the Tribunal’s finding was only based on that 1) “…The applicant has not provided any corroborative medical evidence to support those claims…” and 2) “… the Tribunal is satisfied that the applicant was able to put her case in full before the Tribunal…” Apparently, even if I had “… not provided any corroborative medical evidence to support those claims…” and I “… was able to put…” my case in full before the Tribunal, there would definitely not have been the evidence that my “… emotional upset in the course of the hearing, is not due to any of the claimed events…”
As a matter of fact, I had to look back miserable experiences, particularly the death of my father and the death of my brother, and sufferings to which I have subjected in China. That’s why I could not stop crying and was very upset in the course of the hearing.
2.The Tribunal committed jurisdictional error by failing to comply with its obligation under s.424A(1) of the Act.
Particulars
The Tribunal made its decision based on that my oral evidence given at the Tribunal’s hearing has been inconsistent with the information in my application provided to the Department. The Tribunal has also made its finding based on the information obtained from China’s Criminal Procedure Law and the information was specifically about my claims which had been stated at the Paragraph 68 in the Tribunal’s decision as follows:
... The applicant was asked if she had any corroborative evidence relating to her detention or release. She said she had no such documents. The applicant stated that she was illegally arrested and she did not pay money. When asked to clarify, she stated that she meant that she did not bribe the police who are corrupt. She said there may have been a warrant but she was not given any documents…
The Tribunal, however, failed to give to me, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any above-mentioned information that the Tribunal considers would be 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 it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and the Tribunal failed to create a genuine opportunity for me to invite me to comment on or respond to it.
The applicant has not taken up the opportunity given to her to amend the application or file submissions in support of it. I invited oral submissions from the applicant, but she just made a general statement seeking justice. She did not expand upon the grounds in the application.
The applicant confirmed that she had had the opportunity to read, or have read to her, the Minister’s written submissions concerning the grounds in the application. I find myself in complete agreement with those submissions and incorporate paragraphs 3.1 through to 3.8 of those submissions in this judgment:
The applicant has not filed an amended application despite the opportunity to do so provided in the orders made on 15 July 2009. The application for judicial review pleads two grounds alleging apprehended bias and a breach of s.424A.
The particulars to the first ground take issue with the Tribunal’s findings that the applicant’s emotional upset at the hearing was not due to any of the claimed events and simply lists a number of excerpts from the Tribunal’s reasons.
There is no evidence to support this assertion. A finding of apprehended bias requires 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 member may not have brought an impartial mind to the resolution of the question to be decided.[1] No such evidence is available in the present case. No inference of bias or prejudgment can be drawn from the mere fact that Tribunal has made adverse findings.[2] Where credibility is in issue, the Tribunal member will necessarily have to test the evidence presented, often vigorously.[3]
The requirements of procedural fairness will often require that an applicant be plainly confronted with matters which bear adversely on their credit or bring their account into question. Furthermore, the decision-maker’s assessment of an applicant’s credit will often depend upon their demeanour and the manner in which they give evidence.[4] The only evidence currently before the Court of what occurred at the Tribunal hearing is contained in the Tribunal’s decision. There is nothing on the face of the decision that would establish apprehended bias.
If this ground contains an assertion that the applicant was not provided with a ‘real and meaningful’[5] hearing invitation, then this allegation cannot be established. The applicant was validly invited to attend the hearing and gave oral evidence. The relevant issues were raised with her and she was provided with an opportunity to comment.[6] Further, the Tribunal was aware of her emotional upset and the decision indicates that she was asked whether she required any breaks. In these circumstances and in the absence of any corroborative evidence to support the claims of memory problems the Tribunal was entitled to find that the applicant did not suffer from any condition which the Tribunal was required to take into account.
The second grounds pleads that the Tribunal failed to comply with s.424A in that the information obtained from ‘China’s Criminal Procedure Law’ was not put to in accordance with s.424A. This information is independent country information and it is widely accepted that independent country information falls within s.424A(3)(a) and is not required to be put to the applicant for comment.[7] Accordingly no obligation arose under 424A in respect of this ‘information’.
In any event, there was no obligation on the Tribunal to put its concerns about the applicant’s inconsistent evidence in writing pursuant to s.424A. In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 616 [18], a majority of the High Court approved the statement of Finn and Stone JJ, in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477, that the word “information”:
.…does not encompass the tribunal’s subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc…
[1] Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at 434-435 at [27]-[32]; see also NADH of 2001 v Minister for Immigration 214 ALR 264 at [115].
[2] VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration [2002] FCAFC 286 at [3].
[3] Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at 434-35 at [30]
[4] Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at 434-35 at [34]
[5] Minister for Immigration v SCAR (2003) 198 ALR 293 at [33]-[37]
[6] SZBEL v Minister for Immigration (2006) 228 CLR 152.
[7] Minister for Immigration v NAMW [2004] FCAFC 330 per Nicholson, Jacobson and Bennett JJ at [44-46]; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 per Dowsett, Hely and Lander JJ at [7-30].
Accordingly, no breach of s.424A can be established.
Before proceeding to give ex tempore judgment in this matter, I explained to the applicant that I could not see, in the light of the Minister’s submissions, any arguable case of jurisdictional error, and invited further submissions from her. She simply invited me to apply Australian law.
The show cause application fails to disclose any arguable case of jurisdictional error. Neither was any arguable case of error apparent to me from my own reading of the material.
Accordingly, I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
Costs should follow the event in this case. The Minister seeks scale costs of $2,935. I invited submissions on costs from the applicant and she commenced making submissions in support of her show cause application. I see no reason to depart from the Court’s scale in this matter. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 1 September 2009
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