SZNTM v Minister for Immigration - [2009] FMCA 1080

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNTM v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1080

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(1); 424AA; 474; pt.8 div.2

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
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:

SZNTM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1724 of 2009

Judgment of:

Emmett FM

Hearing date:

3 November 2009

Date of Last Submission:

3 November 2009

Delivered at:

Sydney

Delivered on:

3 November 2009

REPRESENTATION

Applicant appeared on his own behalf assisted by a Mandarin interpreter

Counsel for the Respondent:

Mr D. Tynon

Solicitors for the Respondent:

Ms B. Rayment, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1724 of 2009

SZNTM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

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 22 June 2009 and handed down on 23 June 2009.
The applicant claims to be a citizen of the People’s Republic of China (“China”) and previously a resident of a village in Fujian Province (“the Applicant”).
The Applicant arrived in Australia on 7 January 2008 having departed legally from Baiyun Airport on a passport issued in his own name and a student guardian visa issued on 14 December 2007.
On 26 June 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 23 August 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 21 September 2008, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 22 June 2009, the Tribunal affirmed decision of the Delegate not to grant a protection visa.
On 20 July 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 claims, the Delegate’s decision and the Tribunal’s findings

The Applicant’s claims made in support of his protection visa application and the Delegate’s decision are accurately summarised in the written submissions of counsel for the First Respondent, Mr Tynan, as follows:
“2. The applicant, a citizen of the People’s Republic of China, arrived in Australia on 7 January 2008 and applied for a protection visa (Class XA) on 26 June 2008.
3. The applicant claimed that the Chinese authorities acquired his land and paid him inadequate compensation: Court Book (“CB”) 29-30. He claimed that he confronted his local village committee and protested the amount of compensation he had been paid, an argument ensued and the applicant was abused, beaten, arrested and detained by the police for 15 days: CB 30. Following his release on 9 October 2007, the applicant claims that he lodged a complaint with the Fujian Provincial Government Letters and Complaints and the Fujian Province State Land Department about the acquisition of his land: CB 30. On 11 October 2008, the applicant claims that he was attacked by 3 unidentified persons who beat him and threatened him to stop making complaints: CB 31.
4. In a decision dated 23 August 2008, a delegate of the first respondent, refused the applicant’s application for a protection visa. The delegate accepted as plausible that the Chinese authorities compulsorily acquire land and pay inadequate compensation (CB 61), however, the delegate was not satisfied that the applicant had provided a ‘plausible or credible account of his claimed circumstances’: CB 60. The delegate concluded that the applicant did not have a well-founded fear of persecution for a Convention reason: CB 61.”
The Tribunal’s review and its findings are accurately summarised by counsel for the First Respondent, Mr Tynan, in his written submissions as follows:
“5. On 21 September 2008, the applicant lodged with the Tribunal an application for review of the decision of the delegate: CB 65-68. On 2 October 2008, the Tribunal wrote to the applicant inviting him to attend a hearing before the Tribunal to give evidence and present arguments in relation to his claim: CB 71-72. The applicant provided a response to the hearing invitation (CB 73) and attended the scheduled hearing on 5 November 2008, during which he gave oral evidence and provided documents to the Tribunal: CB 97ff.
6. At the hearing on 5 November 2008, the applicant said that the Tribunal could not have concerns about his evidence as the Tribunal had not investigated his evidence or claims: CB 101[60]. The Tribunal reminded the applicant that it was his responsibility to provide evidence and documents in support of his claim: CB 101[61]. The Tribunal advised the applicant that if he had further evidence or documents that he wished to provide to the Tribunal in support of his claims, then the Tribunal would give him further time to provide them: CB 101-102[61].
7. On 19 May 2009, the Tribunal wrote to the applicant and invited him to attend a second hearing to give evidence and present arguments relating to his case: CB 83-84. The applicant provided a response to the hearing invitation (CB 85) and attended the scheduled hearing on 15 June 2009, during which he gave oral evidence and provided documents to the Tribunal: CB 102ff.
8. In its decision dated 22 June 2009, the Tribunal affirmed the decision of the delegate of the first respondent. The Tribunal found that the applicant was not a credible or truthful witness and that the applicant had given inconsistent evidence in relation to significant parts of his claim: CB 110 [104].
9. The Tribunal accepted that the Chinese authorities compulsorily acquire land belonging to villagers for public needs and there have been instances where landowners have been paid inadequate compensation: CB109 [102].
10. The Tribunal made the following findings in relation to the applicant:
a) He is a citizen of the People’s Republic of China: CB 109 [100].
b) He was granted a student-guardian visa in December 2007: CB111 [108].
c) He did not lodge complaints and was not charged, beaten and detained as a result of making complaints and did not bribe his way out of detention: CB 110[105].
d) He did not visit and lodge complaints at the Provincial Appealing Office, the Fuzhou Land Bureau or the Fuzhou City Land Office on 9 October 2007 or protest on 29 September 2007: CB 110 [106].
e) He did not go to hospital or visit a lawyer’s office on 9 October 2007: CB 110 [106].
f) He was not threatened and beaten on 11 October 2007 or subsequently followed: CB 110 [107].
g) He will not be beaten by thugs if he returns to China: CB 110[107].
h) He did not seek a visa to come to Australia after and because of his alleged attack. His evidence in relation to this has been fabricated to strengthen his claim: CB 111[108].
i) He did not fear persecution when he came to Australia. His evidence in relation to this has been fabricated to strengthen his claim: CB 111[108].
j) He was not detained by the police and therefore was not a person of interest to the authorities. His name was not on a government list and he did not pay a bribe to have his name removed from the list. His evidence in relation to these matters has been fabricated to support his claim: CB 111[109].
k) His family has not been spoken to by the public authorities in China in relation to when he will return to China and in relation to what the authorities will do to him if he returns to China. His evidence in relation to this has been fabricated to support his claim: CB 111-112[110].
l) He has not sent letters to the Chinese public authorities since being in Australia. And the Chinese public authorities have not spoken to his family about these letters. His evidence in relation to this has been fabricated to support his claim: CB 112[111].
11. The Tribunal also made findings that the documents provided to the Tribunal in support of his claim are fraudulent (CB112 [112]) and placed no weight on the video recording he provided: CB 112[114].
12. At CB 110[104], the Tribunal stated that:
“The Tribunal finds that the much of the applicant’s evidence is not credible. The applicant gave inconsistent evidence in relation to a number of significant parts of his claim. Examples include whether or not the public authorities had contacted his family about him since he had been in Australia and whether the village committee is still making trouble with his family, the date at which he decided to escape from China, the length of time he was detained, the question of whether he would or would not make further complaints or appeals if he returned to China and the reason for his delay in lodging a protection visa application. Other examples include the applicant’s claims about his detention, the letters he claimed he sent whilst he was in Australia, his claims that he is being persecuted by the authorities for making complaints and the reasons why he cannot return to China”: CB 110 [104].
13. The Tribunal concluded at CB 112[113] that:
“These above factors, considered cumulatively, leads the Tribunal to find that the applicant is not a witness of truth and causes the Tribunal to reject the applicant’s claims that he has been persecuted in China for the reasons he claimed or that he will face persecution upon his return there.”
14. Accordingly, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention-related reason: CB 113[121]-[122]”

The proceeding before this Court

The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 19 August 2009, the Applicant attended a directions hearing before this Court. I explained to the Applicant that the grounds of his application did not disclose an error capable of review by this Court. The Applicant 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. At that time the Applicant was directed to ensure that any transcript of the Tribunal hearing upon which he may wish to rely was verified by affidavit. 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 advice. The Court also provided to the Applicant, headed in his own language, the contact details of legal services providers and interpreting and translation services.
No amended application, evidence or submissions were filed by or on behalf of the Applicant. At the commencement of the hearing the Applicant confirmed that he relied on the ground contained in an application filed on 20 July 2009 as follows:
“1. I can not go back to China, I will be persecuted by Chinese government.
2. RRT considered my case unfairly. They doubt my claim without substantive evidence.”
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
In support of his application, the applicant said that the Tribunal said that the documents he had provided were false, whereas they were genuine. The Applicant said that the Tribunal did not give reasons as to why the documents were false and there was nothing to prove they were false. For the reasons below, these complaints are not made out.
There were three categories of documents given by the Applicant to the Tribunal for the purposes of his review:
i)Documents in support of his claim to have lodged appeals and complaints as a result of the alleged compulsory acquisition of his land and the inadequate compensation.
ii)A compact disc which the Applicant asserted contained a film of the protest in his village in September 2007 and in which he claimed to be involved. The Applicant asserted that this film was proof that the local government had confiscated his land and that he and other villagers had called police.
iii)Some photographs that the Applicant said were of his land. The Applicant said that some of the photographs were taken in October 2007 and others in August 2008.

i) Documents re lodgement of appeals and complaints

In relation to the first category of documents, the Tribunal noted that independent country information before it suggested that there was significant document fraud in China. The Tribunal noted that it put this information to the Applicant and told him that it may cause the Tribunal not to give the documents much weight. The Tribunal also informed the Applicant that it needed to consider if the documents the Applicant had given were authentic. The Tribunal told the Applicant that, if it found the documents were fraudulent, it may not accept his claims of having lodged appeals and complaints and being denied compensation. The Tribunal told the Applicant that the information was important because it could result in the Tribunal forming the view that the Applicant was not a witness of truth, which may lead the Tribunal to reject his claims. The Tribunal invited the Applicant to comment or respond to the information and told the Applicant that he did not have to do so immediately. The Tribunal informed the Applicant that he could seek additional time and noted the Applicant’ response that the documents were real and that the Tribunal could verify them.
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 19 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 he 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.
The information given to the Tribunal about the documents was not information that enlivened the obligations of s.424A(1) of the Act. In any event, the Tribunal gave the Applicant the information in accordance with s.424AA of the Act. However, because it was not information that enlivened the obligations of s.424A(1) of the Act, even if there was not strict compliance with s.424AA of the Act, which I do not find, such non-compliance is not a jurisdictional error.
Ultimately, the Tribunal comprehensively rejected the Applicant’s claims of past harm, including detention and beatings, and the lodging of any complaint. The Tribunal found that the Applicant’s claim of having difficulty getting out of China, because he was listed as a person who had been detained and that he paid a bribe to have his name removed from the list, to be fabricated. The Tribunal gave various examples of the inconsistencies it found to exist in the Applicant’s evidence. The Tribunal decision record makes clear that the Tribunal put to the Applicant the concerns it had with various aspects of his evidence and noted the Applicant’s responses.
The Tribunal made comprehensive adverse credibility findings in respect of the Applicant’s evidence. The nature of the Tribunal’s adverse credibility findings lead the Tribunal to prefer independent country information, that it was easy to obtain fraudulent documents in China, in finding that the documents provided by the Applicant in support of his claims of complaints and appeals were not genuine.

ii) Film on compact disc

In relation to the film on the compact disc, the Tribunal noted that it viewed the film it contained. The Tribunal made the following comments in relation to the content of the film as follows:
“…The compact disc contained a recording of approximately five minutes in duration. It appeared to have been taken from a second story window at a distance and it consisted of three parts. The first part showed what appeared to be police and army officers in the street. Persons who appeared to be villagers were also standing next to the police and army officers in the street. All persons appeared to be calm and not engaged in any conversation or confrontation between the different groups of people. The persons appeared to be unconcerned about anything. The Tribunal could not identify the applicant as being in the video as the video was often blurred, shaky and was take at a distance and the faces of individuals were not apparent. The second part of the video showed what appeared to be various parts of the village, including what appeared to be piles of timber and some houses. Some shouting of approximately ten seconds duration occurred during this part of the video, but as there were not persons filmed in this part of the video it could not be ascertained by the Tribunal who was shouting. The last part of the video consisted of the filming of what appeared to be police and PSB vehicles with an emphasis on filming the licence plates of the vehicles. No persons were filmed in this part of the video. ”

The Tribunal found that the recording was “shaky, blurred and at a distance from the action it purports to record”. The Tribunal was unable to identify the Applicant as a person being filmed and was unable to discern whether the persons depicted in the film were taking part in a protest and whether the authorities filmed were involved in dealing with that protest. The Tribunal noted that it had no independent information before it to indicate when and where the film was taken. Accordingly, the Tribunal placed no weight on the recording.

iii) Photographs

In relation to the photographs, the Tribunal noted that it considered the photographs and noted that the Applicant claimed that they were of the Applicant’s land. However, the Tribunal noted that it did not have any independent information before it to indicate where the photographs were taken and, accordingly, placed no weight on the photographs.
The Tribunal’s findings were open to it on the evidence and materials before it, including its adverse credibility findings, and for the reasons it gave. Credibility findings are a matter par excellence for the Court. (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
In the circumstances, the Tribunal’s findings in respect of the Applicant’s supporting material, namely that the documents were fraudulent and that the film and photographs did not support the Applicant’s claims, resulting in the Tribunal placing no weight on them, were open to it on the evidence and material before it and for the reasons it gave.

Further ground

Following the completion of submissions of counsel for the First Respondent, the Applicant was invited again to say whatever he wished in support of his application to this Court and in response to anything said by counsel for the First Respondent.
For the first time, the Applicant stated that the Tribunal “did not believe him right from the start”. If this complaint is intended to be an allegation of bias or apprehended bias, 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 invited the Applicant to a hearing on 5 November 2008, which the Applicant attended. At that hearing, the Tribunal explored with the Applicant his claims in some detail and noted matters of concern that it put to the Applicant about his evidence and noted the Applicant’s responses.
The Tribunal noted that it reminded the Applicant that the hearing was his opportunity to present arguments in support of his claim. The Tribunal noted the Applicant’s response that the Tribunal was not investigating his claim and, just like the Department, did not make calls to check whether he was telling the truth. The Tribunal correctly reminded the Applicant that it was his responsibility to provide evidence and documents to the Tribunal in support of his claims. The Tribunal, at the request of the Applicant, gave the Applicant a further month from the date of the hearing to provide any further information.
It is well established that the Tribunal does not have an obligation or duty to make inquiries in respect of claims made by an applicant (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing)). The duty of the Tribunal is to review rather than to inquire (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Thereafter, the Tribunal invited the Applicant to come to a further hearing on 15 June 2009, which the Applicant attended.
At the second hearing, the Tribunal again explored with the Applicant his claims and evidence, including the film, and again put to him the concerns it had about the documents he provided in support of his claims. The Tribunal also put to the Applicant inconsistencies in his evidence which caused it concern and independent country information.
The Tribunal accepted that independent information before it indicated that Chinese authorities compulsorily acquire land for public needs and that there have been instances of inadequate compensation to land owners. The Tribunal also accepted that the Chinese government has in place an appeal system that allows citizens to seek redress for complaints they may have against public authorities.
However, as stated above, the Tribunal did not find the Applicant’s claims credible and found him not to be a witness of truth. Further, the Tribunal did not find explanations given by the Applicant for his five month delay in seeking protection, having regard to the Tribunal’s overall concerns about the Applicant’s credibility, to be satisfactory.
The Tribunal did not accept that the Applicant’s land was compulsorily acquired and rejected the Applicant’s claim of having suffered harm as a result. As stated above, the Tribunal rejected the Applicant’s claims of having lodged appeals and complaints. The Tribunal also did not accept that the Applicant is of any interest to authorities because of any appeal or complaint he claimed to have made in respect of the alleged compulsory acquisition of his land. The Tribunal comprehensively rejected the Applicant’s claims of past detention and beatings for that reason or any Convention-related reason.
The Tribunal identified the relevant law in considering and evaluating the Applicant’s evidence and in considering whether the Applicant has a well founded fear of persecution from authorities in China for a Convention related reason.
The Tribunal concluded that there is not a real chance that the Applicant would face serious harm by reason of having made appeals and complaints, because people knew he had made appeals or complaints or because he might make further appeals or complaints or any other Convention related reason, either now or in the reasonably foreseeable future if he were to return to China.
The Tribunal’s findings were open to it on the evidence and materials before it. 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.
To the extent that the Applicant is intending to allege bias by the Tribunal against the Applicant, as submitted to this Court, because it did not believe him “right from the start”, such a claim is serious and requires evidence. 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]).
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 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]).
Accordingly, any allegation of bias or apprehended bias is rejected.

Conclusion

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 fifty-two (52) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 3 November 2009