SZNSB v Minister for Immigration - [2010] FMCA 162

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNSB v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 162

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal approached its task with an apprehension of bias or actual bias – whether the Refugee Review Tribunal considered all the applicant’s claims.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; pt.8 div.2

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
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
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
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

Applicant:

SZNSB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1520 of 2009

Judgment of:

Emmett FM

Hearing dates:

22 October 2009 & 2 March 2010

Date of Last Submission:

2 March 2010

Delivered at:

Sydney

Delivered on:

11 March 2010

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 1520 of 2009

SZNSB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

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 29 May 2009 and handed down on the same day.
The applicant claims to be a citizen of the People’s Republic of China (“China”) and previously employed as an accountant and at a taxi company (“the Applicant”).
The Applicant arrived in Australia on 29 October 2008 having departed legally from Shanghai on a passport issued in her own name and a tourist visa issued on 14 October 2008.
On 11 December 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 30 January 2009, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 2 March 2009, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 29 May 2009, the Tribunal affirmed decision of the Delegate not to grant a protection visa.
On 25 June 2009, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

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.
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”).
Australia has protection obligations to a refugee on Australian territory.
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, 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.”
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

The Applicant provided a statement in support of her protection visa application in which she stated that she feared persecution by Chinese authorities by reason of her involvement in printing religious pamphlets in China.
The Applicant claimed she had assisted a friend in the production of 1,000 pamphlets “about Bible knowledge” for a priest over the weekend of 7 to 8 September 2008.
The Applicant claimed that, on 10 September 2008, the friend she had assisted came to her home and told her the priest for whom they had produced religious pamphlets had been arrested by the Public Security Bureau (“the PSB”). The Applicant claimed she feared the priest had confessed and implicated her and the other woman in the pamphlet production.

The Delegate’s decision

The Applicant was invited to an interview with an officer of the Department on 4 February 2009 to discuss her claims, but did not attend.
On 30 January 2009, 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.

The Tribunal’s review and decision

On 2 March 2009, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The Applicant provided no further documents in support of her application.
On 20 March 2009, the Tribunal wrote to the Applicant informing her that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. On 21 May 2009, the Applicant attended the Tribunal hearing and gave evidence.
At the Tribunal hearing, the Applicant raised for the first time claims of being a Falun Gong practitioner in China. The Applicant claimed that she had commenced practice in 1997. She claimed that after 2005 she practised occasionally in private. She claimed she had a police record. However, she claimed that she had been warned only because her practice was occasional, although it was with an older woman who had since been sentenced to three years in detention.
The Tribunal noted that it had before it the Department’s file and the Tribunal file.
The Tribunal found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:
“12. On 29 May 2009 the Tribunal handed down its decision and affirmed the delegate’s decision not to grant a protection visa to the applicant.
13. In coming to its decision firstly, it reviewed the applicable law in unobjectionable terms. It then set out the applicant’s claims and evidence. Finally, it set out its findings and reasons.
14. The Tribunal’s main reason for affirming the delegate’s decision was its adverse credibility findings.
15. The Tribunal found that the applicant’s account of the events preceding her departure from China was not credible[1]. The Tribunal found there were inconsistencies in important aspects of her claims presented in her written application and her oral evidence, and the Tribunal found the applicant’s oral evidence vague and contrived[2]. The Tribunal Member found key aspects of her claims to be inherently implausible and could not be believed. The Tribunal also found that some important matters (namely the new claim of persecution for being a Falun Gong practitioner) were raised for the first time at the Tribunal hearing.
16. The Tribunal took into account the explanations given for the deficiencies in the applicant’s evidence, namely the applicant’s claimed ill health and memory problems, but found that the deficiencies arose because the applicant was not telling the truth in relation to her claims[3].
17. The Tribunal then considered her claim to be a Falun Gong practitioner whilst in China. The Tribunal found that the applicant only practiced on an occasional and infrequent basis, and found that it was not satisfied the applicant would seek to practise Falun Gong if she returned to China, and found that if she did wish to do so and was genuinely concerned about the consequences, she would have raised this in her protection visa application[4]. The Tribunal did not accept that the applicant has ever come to the adverse attention of the Chinese authorities at any time, in a manner that would result in a real chance of future persecution as a Falun Gong practitioner. The Tribunal was therefore not satisfied that the applicant had a well-founded fear of persecution as a Falun Gong practitioner.
18. Next the Tribunal considered the applicant’s claim about being involved in printing anti-government and religious materials. In relation to this claim the Tribunal did not accept the applicant’s claims. The Tribunal found this claim to be inconsistent, vague and implausible[5]. The Tribunal set out its reasoning process for this finding, and concluded that the applicant’s evidence about the authorities claimed interest in her was not truthful[6].
19. The Tribunal found the applicant did not have a well-founded fear of Convention-related persecution. The Tribunal found the applicant was not a person to whom Australia owed protection under the Act[7].”
[1] GB 125 [57].
[2] Ibid.
[3] GB 126 [58].
[4] GB 127 [62].
[5] GB 127 [63].
[6] GB 129 [69].
[7] GB 129 [72].

The proceeding before this Court

The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 4 August 2009, the Applicant attended a directions hearing before this Court and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing. On that occasion, it was explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal.
At the directions hearing, the Court referred the Applicant to the Court’s legal advice scheme for free legal advice. The Applicant has participated in the Court’s legal advice scheme and received written advice. The Court also provided the Applicant with the contact details of legal services providers and interpreting and translation services in two documents headed in her own language.
At the commencement of the hearing, the Applicant confirmed that she relied on the ground contained in an application filed on 25 June 2009 as follows:
“I was unfortunate in involvement in the printing of anti-government and religious materials of some kinds, as result of which I was wanted by police. The Refugee Review Tribunal had bias against me and failed to take all my claims into account according to s.91R of the Migration Act 1958.”
The ground was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of the ground and in support of her application generally. The Applicant confirmed that she had filed no evidence or submissions in support of her application.
When I asked the Applicant in what way she thought that the Tribunal had demonstrated its bias against her, she responded that it did not look at the law and she was not a refugee. When I asked the Applicant which claims she says that the Tribunal failed to take into account, the Applicant responded that she had claimed to have been wanted by police and the Tribunal had not taken that claim into account. I asked the Applicant if there was any other claim that she said the Tribunal had failed to take into account and she said she did not know. When I asked the Applicant if there was anything further she wished to say in support of the ground of her application or in support of her application generally, she responded that she had nothing further to say.
In relation to the Applicant’s allegation of bias, the Applicant did not provide any particulars, evidence or written submissions in support of that allegation.
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 4 August 2009 the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was directed to ensure any such transcript was verified by affidavit. The Applicant was also directed to give notice if she wished to rely on recordings of the hearing. However, no step was taken by the Applicant to rely on 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.
To the extent that the Applicant alleges bias by the Tribunal, such a claim is serious and requires evidence, such as a transcript of the Tribunal hearing. As stated above, the Applicant was given leave on 4 August 2009 to file and serve a fully particularised amended application and was directed to file and serve any affidavit containing additional evidence to be relied upon, including any transcript of the Tribunal hearing by 11 September 2009. However, as stated above, no further documents were filed by the Applicant in accordance with these directions or otherwise.
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]).
To the extent that the Applicant told the Court this morning that the Tribunal was biased against her because it did not look at the law and she was not a refugee, a fair reading of the Tribunal’s decision record does not support such an allegation.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal accurately summarised the relevant law and the Applicant’s written claims. The Tribunal noted that the Applicant had provided no additional written information to the Tribunal in support of her review application. Following the receipt of the Application for Review on 2 March 2009, the Tribunal wrote to the Applicant on that date acknowledging receipt of her application and inviting her to send any further material or written arguments that she wished the Tribunal to consider.
On 20 March 2009, the Tribunal wrote again to the Applicant informing her that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal again invited the Applicant to send any new information, documents or written arguments that she wished the Tribunal to consider.
On 1 May 2009, at the request of the Applicant, her hearing was postponed until 21 May 2009. Once more, the Tribunal invited the Applicant to send any additional information, new information, documents or written arguments in support of her application.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal explored the Applicant’s written claims with her and put to her matters of concern that it had arising out of her evidence.
In particular, the Tribunal asked the Applicant whether the police had been looking for her and noted her response that her husband had told her they had been to her place in China three times. The Tribunal noted that it asked the Applicant what she thought would happen if she returned to her home. The Tribunal noted her response that she did not want to go back, that her house had been destroyed in an earthquake and that she lived in a government house in very poor conditions. The Tribunal noted that it asked if that was the only reason that she did not want to return, and noted the Applicant’s response that police were constantly looking for her. The Tribunal noted that it put to the Applicant that if police were really interested in her, they would not have gone to her house on one occasion as she claimed and then left when she was not there. The Tribunal said the police would have stayed until she returned or summonsed her to the police station. The Tribunal noted the Applicant’s answer that, maybe, they just wanted to gather information and that she was not sure of the details.
The Tribunal’s decision record discloses that it then told the Applicant that it was going to discuss some issues with her that might lead it to think she was not telling the truth about her reasons for leaving China. The Tribunal noted that the Applicant responded immediately that she was telling the truth, but that when she wrote her statement she could not write very much and could not remember some things. Earlier, the Applicant had confirmed to the Tribunal that she had a friend who had helped her with the completion of her protection visa application. It was at this point in the hearing that the Applicant stated for the first time that she had practised Falun Gong before the government suppressed it, although she had continued to practise “a bit from time to time”. She told the Tribunal that she had not practised since the earthquake and did not practise in Australia.
The Applicant stated that she had a police record. The Tribunal noted that when it asked her why she may have a police record she said that her name was listed by the “Community”, however, because she did not practise for long she was not detained, but only warned. The Applicant stated that this warning was given to her before Chinese New Year 2006.
The Tribunal noted that the Applicant had obtained a passport and travelled overseas in late 2007 without difficulty. The Tribunal noted that it put to the Applicant that, if she had practised Falun Gong, it was not an issue of concern to authorities. The Tribunal noted the Applicant’s response was that she had no criminal record and there was no record on her profile because she had not been sentenced or arrested.
The Tribunal then noted that it asked the Applicant a number of questions about Falun Gong “most of which she was able to answer satisfactorily.” The Tribunal then asked the Applicant why she had not mentioned that she was a Falun Gong practitioner in her protection visa application and noted the Applicant’s response that she was not familiar with the process. In particular, the Tribunal noted that it asked the Applicant whether she had not mentioned being a Falun Gong practitioner because she did not fear persecution for that reason. The Tribunal noted the Applicant’s response that, when she made the protection visa application, she did not think that much. The Applicant stated that it was part of her reason of her alleged fear of persecution as well as “the police matter.”
The Tribunal noted that it put to the Applicant that it had some difficulty accepting that she faced persecution as a Falun Gong practitioner in circumstances where, even on her own evidence, it was not clear that authorities were aware that she had practised Falun Gong. The Tribunal noted that it also considered that, if the Applicant genuinely feared persecution as a Falun Gong practitioner, she would have mentioned it in her protection visa application. She stated that she had not sought protection on an earlier overseas trip because her passport had been kept by her tour guide, whereas in Australia, she had her passport with her. The Tribunal noted that she said that, when she wrote her statement, she did not know how to write it and therefore only wrote about recent events.

The Tribunal noted that it then discussed with the Applicant some reasons it might have for not believing her other claims. The Tribunal put to the Applicant inconsistencies in her written statement in support of her protection visa application and her oral evidence. In particular, the Tribunal put to her that it had difficulty accepting her claims that the police had been looking for her because she had not mentioned this in her written statement, nor had she mentioned previously that she had been hiding in another province prior to her departure. Further, the Tribunal found it hard to believe that if the police had come looking for the Applicant, as alleged, they would simply have gone away when she was not at home.
The Tribunal noted the Applicant’s explanation that she was not very well educated, however, the Tribunal noted that she had attended school for 11 years and run two businesses. The Tribunal noted the Applicant’s explanations that she was not good at school and the businesses belonged to her husband and that she had been confused since the earthquake.
The Tribunal noted that, at the conclusion of the hearing, it asked the Applicant whether there was anything else she wished to say and noted that she said she could not even remember what she had said at the hearing. The Tribunal noted that the Applicant said she had had two operations since the earthquake and was taking very strong painkilling medication which had affected her memory greatly.
The Tribunal noted that it took into consideration the reasons put forward by the Applicant for the deficiencies in her evidence, including her claimed ill health and memory problems. However, the Tribunal noted that the Applicant had not presented any medical evidence to the Tribunal to support her claims of ongoing health problems. The Tribunal accepted that the impact of the earthquake was a traumatic event in the Applicant’s life and that, following the earthquake, she had two operations and was given painkilling medication. However, the Tribunal noted that the Applicant did not mention health problems at the hearing until the Tribunal began to identify problems with her evidence. The Tribunal found that she was able to provide “surprisingly detailed evidence about some matters”, which would appear to contradict her claims of confusion and memory problems. The Tribunal found that she gave her evidence “confidently and without hesitation, expressing no difficulty in remembering anything until the Tribunal mentioned the inconsistencies in her claims.”
For those reasons, the Tribunal did not accept that the Applicant was suffering from memory or health problems that adversely affected her capacity to present her claims. The Tribunal did not accept that the Applicant was a poorly educated or unsophisticated person who would have difficulty presenting her claims for refugee status, which the Tribunal found not to be complex, and which the Applicant claimed had happened recently over a short period of time. The Tribunal found that the deficiencies in the Applicant’s evidence arose because she was not telling the truth in relation to her claims.
Ultimately, as stated above, the Tribunal found there were inconsistencies in important aspects of the Applicant’s claims as well as internal contradictions in her oral evidence, which it found to be “vague” and “seemed in some parts to have been made up on the spot.” The Tribunal also found key elements of her claims to be “so inherently implausible that they do not make sense and cannot be believed.” In particular, the Tribunal noted that “some important matters were raised for he first time at the Tribunal hearing.”
Nevertheless, the Tribunal accepted that the Applicant had at some time been a Falun Gong practitioner. However, the Tribunal did not accept that the Applicant has a well-founded fear of persecution in China for that reason. The Tribunal was not satisfied that the Applicant would seek to practise Falun Gong if she returned to China; and, that if she genuinely feared persecution for that reason she would have raised that concern in her protection visa application. The Tribunal found that, on the Applicant’s own evidence, her practice of Falun Gong in China was “infrequent and sporadic”, and her interest in Falun Gong was minimal. Essentially, the Tribunal found that the Applicant did not hold a fear of persecution by reason of ever having practised Falun Gong.
Otherwise, the Tribunal rejected the Applicant’s claims of having been involved in the printing of anti-government or religious material as a result of which she was wanted by the police. The Tribunal rejected the Applicant’s claims that she was now wanted by the police or that the police had ever searched for her in China.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal carefully considered all the evidence and material before it in support of the Applicant’s claims. The Tribunal was not satisfied on the evidence before it that the Applicant was of any interest to authorities in China because of her involvement in printing unauthorised material or because she may have been identified as a Falun Gong practitioner. The Tribunal found the Applicant’s evidence about having been of interest to authorities to be untruthful.
Accordingly, the Tribunal affirmed the decision under review.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including the Tribunal’s adverse credibility findings. 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).
As is referred to above, a fair reading of the Tribunal’s decision record makes clear that the Tribunal explored with the Applicant her claim to have been wanted by police in China and found that claim to be untruthful. In the circumstances, the Applicant’s assertion to this Court that the Tribunal had failed to consider her claim to have been wanted by police is no more than a disagreement with the findings and conclusions of the Tribunal. Such a complaint invites merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54).
Otherwise, a fair reading of the Tribunal’s decision record makes clear that the Tribunal considered carefully all claims made by the Applicant and all her evidence, both written and oral in support of all of her claims. It was the vague, inconsistent and internally contradictory evidence given by the Applicant that caused the Tribunal to have concerns about her credibility. As stated above, those findings were open to the Tribunal on the evidence and material before it and for the reasons given by the Tribunal.
In the circumstances, 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) 205 CLR 507 at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than 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]).
Accordingly, the grounds of complaint in the application are not made out.

Conclusion

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 her evidence and noted the Applicant’s responses. The Tribunal also identified independent country information to which it had regard. 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.
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.
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.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 10 March 2010