SZNTD v Minister for Immigration
[2009] FMCA 1106
•27 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNTD v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1106 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Minister for Immigration and Citizenship v MZXPA and Another (2008) 100 ALD 312; [2008] FCA 185 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 |
| Applicant: | SZNTD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1685 of 2009 |
| Judgment of: | Barnes FM |
| Hearing date: | 27 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 27 October 2009 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Ms Francois |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
(1) The application be dismissed.
(2) The applicant pay the costs of the first respondent fixed in the sum of $4,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1685 of 2009
| SZNTD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal made on 16 June 2009 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the Peoples Republic of China, arrived in Australia in November 2008 and applied for a protection visa in December 2008. In his protection visa application he claimed in essence to fear persecution in China based on his imputed political beliefs arising from his successful organisation of a protest about a proposal to build a nuclear power plant near his village and about the imprisonment of his father for protesting about the same issue.
The applicant attended an interview conducted by a delegate of the first respondent. The delegate refused to grant the applicant a protection visa.
The applicant sought review by the Tribunal. He was invited to and attended a Tribunal hearing. After the hearing his migration agent sent the Tribunal a statutory declaration of the applicant in relation to what were described as “issues arising from the Tribunal’s hearing”.
In its reasons for decision the Tribunal outlined the applicant’s written claims, the claims made at the Departmental interview and at hearing and also set out the content of his statutory declaration.
It its findings and reasons the Tribunal summarised the applicant’s claim as a claim to “fear harm in China because he organized a protest demonstration and because he has breached a reporting condition of bail”. It accepted that the applicant was a citizen of China, but otherwise was not satisfied as to the credibility of the applicant’s claims that he organised protest activities in China or that he was harmed by the police for such a reason. The Tribunal gave a number of reasons for its conclusion.
The Tribunal considered first the applicant’s claims to have played a leading role in organising a large protest against the construction of a nuclear power station and seeking release of his father from detention and increased compensation. It recorded his claims that the protest was conducted by a large group of some 300 well-organised protestors, that he had previously been involved in such protests that had been broken up by the police and that he had additional prominence as his father had begun organising the protest against the project and had been arrested and detained some two weeks earlier.
The Tribunal found that the nuclear power station itself could reasonably be seen by the authorities as a highly important and sensitive project. The applicant had claimed that its official opening (to be attended by senior government figures) was to take place on 21 November, less than a month after the protest he claimed he had organised and that he said had been broken up by the police with considerable violence and more than 30 people injured. He claimed that together with 10 other people he had been arrested by the local PSB and placed in detention where he was subjected to torture.
The Tribunal found, however, that “[a]gainst this background it would be reasonable to expect the Applicant to have been seen by the authorities as a major source of opposition to a project which had great importance for the central and provincial governments alike”. His opposition would, moreover, have been a source of political embarrassment for the authorities given that the official opening of the project was imminent. It found that the PSB, a “notoriously ruthless and abusive national police force, could be expected to react with violence against the demonstrators and their leader” and indeed that the applicant claimed to have foreseen this when he paid a “snakehead” to obtain an Australian visa and bribe an airport official.
However the Tribunal found that despite this, the applicant claimed that he was not taken to the headquarters of the PSB in the province in which he lived, but that he was detained only in a local PSB station, that his detention was not lengthy and that he was able to secure his release after two weeks by paying a bond (apparently bail) facilitated by a bribe and a falsified medical certificate stating he was unwell.
The Tribunal was not satisfied that these claims were credible. In particular, it was not satisfied it was credible that a person with the applicant’s “claimed prominence as an organizer of large-scale opposition to an important government project would have been dealt with at the level of a local office of the PSB which was so corrupt that he could be released on bail, facilitated by a bribe and a falsified medical certificate, just two weeks later”. It was not satisfied that such a person would be able to gain his freedom so that he “would be able to continue his protest actions and disrupt the inauguration ceremony which was to take place two weeks after his release”. Nor was it satisfied that police records on such a person created by the PSB (a national police force) would not be circulated more widely within that organisation than simply within a local office or that such a person would have been able to depart China using a genuine passport in his own name had he been of adverse interest to the authorities for his role in organising a protest against a nuclear power station.
The Tribunal was also not satisfied that it was credible that if the PSB intended to punish the applicant by placing him in a “re-education through labour” camp as claimed, they would have released him and taken no further action for a further three weeks until he left China. It found that this claim did not sit easily with the claim at hearing that others that had been arrested with the applicant were placed in such a camp two weeks after he was granted bail and four days before he left for Australia.
The Tribunal found that it was reinforced in these findings by the late appearance of aspects of the applicant’s claims about his release on bail and the reason for his departure from China. It referred to the fact that while the applicant stated in his protection visa application that he obtained bail by paying a bribe, there was no reference in that document to his having also obtained a falsified medical certificate. It considered his explanation at the hearing that he had not mentioned a medical certificate in his protection visa application because he did not have a copy or at the Departmental interview because he was not asked about it. It was not satisfied that this adequately explained why, if such an important document had genuinely been used by the applicant to help secure his freedom, he would not have made any mention of it until the Tribunal hearing.
The Tribunal also had regard to the fact that the applicant’s claim about the help given to him in secret by a local PSB officer was also recent, having been made at the Tribunal hearing and in the post-hearing statutory declaration. He had claimed at that time that a policeman helped out of gratitude for an incident during the demonstration when the applicant saved him from harm, that it was this person who suggested to the applicant’s wife that she pay a bribe to the chief of the local PSB station and who suggested that a falsified medical certificate be obtained. He claimed that this person also warned that the police intended to put the applicant into a re-education through labour camp. The Tribunal stated that “[d]espite the central and highly fortuitous role this police officer is said to have played in the Applicant’s life at this time, however, there is no mention of him in the protection visa application and the Applicant did not refer to him in his Departmental interview. I have considered the applicant’s explanation for this, which is that he did not want to get the police officer into trouble. However there would have been no need for him to identify the police officer by name to the Department and there is no reason to believe that his registered migration agent would not have been able to assure him that any information he gave in connection with this application would be held in confidence.” The Tribunal was not satisfied that the applicant had provided a satisfactory explanation for the late appearance of this information.
The Tribunal found that these issues of concern were “not minor or marginal aspects” of the claims, but lay “at the heart” of the applicant’s claims to have been targeted by the authorities for organising opposition to the nuclear power station and to have escaped harm with the assistance of a friendly police officer and the payment of bribes.
The Tribunal stated that given its lack of satisfaction with the credibility of these claims it was not satisfied that the applicant was involved in organising a demonstration as claimed, that he was ever imputed with an anti-government political opinion as a result or that he was ever arrested or detained or in any other way harmed by the PSB or other Chinese authorities. Nor was it satisfied that after he left China the police visited the applicant’s house to ask his wife his whereabouts or that his wife had to flee her home to avoid a police arrest. It was said to follow that it was not satisfied that the applicant was ever placed on reporting conditions by the Chinese authorities or that he breached such conditions by leaving China to come to Australia.
The Tribunal summarised its conclusions that it was not satisfied of the applicant’s claims about being harmed by the authorities for organising opposition to the construction of a nuclear power station or for working for increased compensation and release of his father and that it was not satisfied that he was ever perceived to hold an adverse political opinion. It found that nothing in the information before it indicated that anything in this regard had changed since the applicant left China so that it could now be said that he would be at risk of harm for such reasons if he was to return. It found that no other reason emerged from the material and information the applicant provided to the Tribunal and concluded on all the information before it that it was not satisfied that the applicant had a well-founded fear of persecution because of political opinion, real or imputed, or for any other Convention-related reason should he return to China now or in the reasonably foreseeable future. It affirmed the decision of the delegate not to grant the applicant a protection visa.
The applicant sought review by application filed in this court on 15 July 2009. He has filed written submissions addressing the grounds in his application.
The first ground in the application is that “[t]he Tribunal failed to look at my evidence or my claims or the information relation (sic) to my review application objectively, independently, properly and fairly. Instead, the Tribunal made its findings or decisions significantly with a highly subjective point of view and its assumption. It is no doubt that the Tribunal’s decision has included a reasonable apprehension of bias”.
The second and third grounds are that the “Tribunal assessed [the applicant’s] credibility incorrectly” and that it “completely ignored [his] further claims or further evidences submitted to it after the Tribunal’s hearing in comment on or response to the concern arising from the Tribunal’s hearing”.
In written submissions the applicant claimed that the Tribunal “misstated or distorted or ignore[d] or even changed his evidence” on purpose and did not consider fairly or properly the content of the statutory declaration that he made. He submitted that the Tribunal made its findings based on a highly subjective point of view and assumption.
The applicant also submitted that there was no evidence to indicate that the Tribunal had seriously considered his claims in the course of the hearing and thereafter, particularly in relation to the police officer who was said to have assisted him, and that the Tribunal had determined the application unfairly, especially as the applicant had provided a written explanation for a number of aspects of his claims. The applicant took issue with the Tribunal’s failure to accept his claims, its reasoning in relation to the claims made by him compared with the situation of his father and contended generally that the Tribunal had failed to consider his claims properly.
In essence, as the applicant indicated in submissions in reply, his concern was that while he put forward an explanation to the Tribunal for matters of concern arising out of the Tribunal hearing, the Tribunal still doubted his credibility and whether all that he had said was true.
An allegation of actual or apprehended bias is a serious allegation. In this case such an apprehension of bias is said to arise from the manner in which the Tribunal engaged in its reasoning process. I note for the sake of completeness that the only evidence of what occurred in the Tribunal hearing is the Tribunal reasons for decision and that in submissions the applicant did not take issue with the manner in which the Tribunal conducted the hearing.
The test for apprehended bias was considered by the High Court in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28. As Gleeson CJ, Gaudron and Gummow JJ stated at [27] – [28]:
The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided …
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 …
Their Honours saw no reason to depart from the objective test of possibility as distinct from probability as to what will be done or might have been done. The test adopted by the High Court in that case has been considered in a number of other cases. It is well established that it would be a rare and extreme circumstance that bias on the part of the Tribunal would be established simply by reference to the reasons produced by the Tribunal (see SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 and SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358). Nonetheless, I also note that in NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 Allsop J suggested at [115] that fact-finding can be conducted in a manner which can result in a reasonable apprehension of bias. His Honour stated:
By and large fact-finding is a task within jurisdiction, though factual error is not necessarily mutually exclusive of jurisdictional error… Where fact-finding has been conducted in a manner which can be described, as here, as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way, these considerations may found a conclusion that the posited fair-minded observer might, or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly…
However in this case I am not satisfied on the material before the court that it has been established that there was an apprehension of bias from the perspective of the appropriately informed reasonable lay observer. While the Tribunal recorded that it raised certain issues of concern with the applicant in the hearing, the raising of such issues, even if that might be seen as expressing a preliminary view, would not of itself establish apprehended bias (see Minister for Immigration and Citizenship v MZXPA and Another (2008) 100 ALD 312; [2008] FCA 185).
The applicant took the opportunity to provide a statutory declaration to the Tribunal to address matters of concern raised in the hearing. Contrary to the applicant’s contention, the Tribunal took into account the applicant’s explanations in that statutory declaration, which it set out in full in its reasons for decision and which it referred to specifically in its findings and reasons insofar as was relevant in relation to the Tribunal findings. It did not ignore or fail to consider that evidence.
Insofar as the applicant might be taken to be suggesting that the Tribunal unreasonably evaluated his evidence, in the sense of reaching a conclusion contrary to all the probative material before it, the findings made by the Tribunal in relation to the lack of credibility of the applicant’s claims were open to it on the material before it for the reasons which it gave.
While the applicant took issue with the Tribunal’s fact-finding, fact-finding is a matter for the Tribunal. The fact that it did not accept the applicant’s claims or the applicant’s explanations for issues of concerns is not in all of the circumstances such as to give rise to an apprehension of bias.
Insofar as the applicant says in substance that the Tribunal should have accepted his explanations, this seeks merits review. The Tribunal was not obliged to accept the applicant’s explanations for the matters of concern that it raised at the hearing. Rather than simply rejecting the applicant’s claims, the Tribunal gave detailed reasons for its lack of satisfaction about particular aspects of the credibility of the applicant’s claims.
The key aspect of the Tribunal’s reasoning was its view that it was not credible that if the applicant had engaged in such a significant protest at the time he claimed, shortly before the opening of a nuclear power station which might be seen as of significance and sensitive for the Chinese authorities, he would, as he claimed, simply have been detained locally and have been able to secure his release by paying a bond and a bribe with a falsified medical certificate, given the likely importance and the likely reaction of the PSB, had there been such events.
In particular the Tribunal was not satisfied that such a person would have been dealt with locally or have been able to obtain release at a time when he would be able to continue his protest actions and disrupt the inauguration ceremony which, according to the applicant, was to take place some two weeks after his release. Nor was it satisfied that the PSB would not have kept national records on such a person or that he would have been able to depart China using a genuine passport in his own name had he been of such adverse interest to the authorities.
The Tribunal did not simply rely on its reasoning in that respect to reject the credibility of the applicant’s claims. It went on to consider the applicant’s claim about “re-education through labour” and found that it was reinforced in its findings by the late appearance of aspects of the applicant’s claims. The finding in relation to the late appearance of claims has to be seen in light of the material that had been put by the applicant in support of his protection visa application (which did not include significant aspects of his claims referred to by the Tribunal). Moreover the applicant had attended an interview with a Departmental delegate, which is summarised in detail in the Tribunal reasons for decision, where the delegate had observed that the applicant could provide little by way of detail at the interview in relation to how he organised the claimed protest, or the circumstances of his arrest.
It was in that context that the applicant subsequently made additional claims at the hearing and addressed the Tribunal’s concerns about the late raising of those claims and aspects of those claims in his statutory declaration.
The Tribunal was entitled to arrive at the conclusions it reached and entitled not to be satisfied as to the credibility of the applicant’s claims on the evidence before it. It has not been established that 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 might not have brought an impartial mind to the resolution of the question to be decided.
Having regard to all of these matters, apprehended bias is not made out on the material before the court. For the sake of completeness I note also that actual bias is not made out on the material before the court (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17).
The second ground in the application is that the Tribunal assessed the applicant’s credibility incorrectly. Insofar as the applicant seeks merits review, merits review is not available in this court. The Tribunal cannot be said not to have made a genuine attempt to consider the applicant’s evidence. It gave detailed reasons as to why it was not satisfied that the applicant’s claims were credible. Again, its findings in that respect and its lack of satisfaction were open to it on the material before it for the reasons that it gave. This ground is not made out.
The final ground is that the Tribunal completely ignored the applicant’s further claims or further evidence submitted after the hearing. The material referred to in this ground is the statutory declaration of the applicant submitted on 11 June 2009 to address issues raised at the Tribunal hearing. It is notable that in its account of the Tribunal hearing the Tribunal recorded that on a number of occasions it put to the applicant issues of concern in various respects and that at the end of the hearing it again put to the applicant that the information before the Tribunal could raise doubts about the accuracy of his claims in particular respects. The applicant was invited to comment either immediately or subsequently on these issues and he indicated that he wished to respond in writing. The statutory declaration is that response.
Contrary to the applicant’s submissions, the statutory declaration is not a document in which the applicant made fresh claims which failed to be considered by the Tribunal. Rather, the applicant repeated or elaborated on his explanations for matters such as his claim that he could be released through bribery but his father could not; the involvement of the local policeman whom he said had facilitated his release; the reason for his failure to mention this in his original application for a protection visa; the distinction between his case and that of his father; why he claimed he was able to leave China on a passport in his own name; why the protests had not been reported in the media; and also why he did not have documentary evidence showing that he had been detained and released by the local police station.
The claims that the applicant made and the basis on which he claimed to fear persecution were considered by the Tribunal. It was clearly aware of and referred specifically to aspects of his response to issues raised at the hearing. It has not been established that the Tribunal failed to consider integers of the applicant’s claims in a manner constituting jurisdictional error. The Tribunal expressly addressed the applicant’s evidence consisting of his statutory declaration submitted after the hearing, and it has not been established that the Tribunal completely ignored either further claims or further evidence submitted to it after the hearing in a manner constituting jurisdictional error.
As I indicated earlier, the fact that the Tribunal did not accept the applicant’s explanations in relation to the areas of concern raised at the hearing is not of itself such as to establish jurisdictional error having regard to the Tribunal reasons for decisions as a whole. As no jurisdictional error has been established, the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful. It is appropriate that he meet the costs of the first respondent. The amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 17 November 2009
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