SZNVO v Minister for Immigration
[2009] FMCA 1167
•17 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNVO v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1167 |
| MIGRATION – Visa – Refugee Review Tribunal – protection (class XA) visa – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa – Applicant a citizen of China claiming fear of persecution on the ground of imputed political opinion – “snakeheads” – people smuggling – allegation of apprehended bias – credibility – whether Tribunal failed to comply with Migration Act 1958 (Cth) ss.424A or 425 – no jurisdictional error. |
| Migration Act 1958 (Cth) ss.424A, 425, 474 |
| SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCA FC 107 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; 75 ALJR 982 Abebe v Commonwealth (1999) 197 CLR 510 |
| Applicant: | SZNVO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1981 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 November 2009 |
| Date of last submission: | 17 November 2009 |
| Delivered at: | Sydney |
| Delivered on: | 17 November 2009 |
REPRESENTATION
| Applicant: | Appeared in person |
| Counsel for the Respondent: | Mr Bevan |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1981 of 2009
| SZNVO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant has asked the Court to review a decision of the Refugee Review Tribunal. The Tribunal made a decision on 20th July 2009 affirming the decision not to grant the Applicant a Protection (Class XA) visa.
The Applicant asks the Court to make a declaration that the decision was invalid and contrary to law, to quash the Tribunal decision and to remit the matter to the Tribunal, to be determined in accordance with law.
In his application he claims that the Tribunal failed to comply with its obligations under s.424A of the Migration Act and under s.425 of the Act and that the Tribunal’s decision has included a reasonable apprehension of bias.
Background
The background to this matter is that the Applicant, who is a citizen of the Peoples Republic of China, arrived in Australia on 31st March 2008. On 2nd April 2008 he applied for a Protection (Class XA) visa. When he submitted his application for a Protection visa the Applicant also submitted a statutory declaration setting out his claims. Essentially, he claimed that he had worked as a painter and the team in which he worked was involved in painting projects in Yi Chun, City.
In June 2006 the team undertook work for a real estate development company which failed to pay 90 per cent of the contracted fee. The Applicant and the man with whom he worked sought legal advice but were told by a lawyer not to make a claim because the particular company had a special relationship with the family of the Mayor of Yi Chun City. They did not accept that advice but pursued their claim, both by approaching the company and also by approaching various government agencies: all without success.
In April 2007 the Applicant and the man with whom he worked, Mr Guo, decided to approach the mayor’s office directly. However, they did not receive any satisfaction from the mayor; rather, they were arrested by the Public Security Bureau and detained for a month. After they were released, both Mr Guo and the Applicant were warned or threatened by the police.
In September 2007 the Applicant said that he was approached by a young woman who was a journalist, who was also the new girlfriend of the lawyer whom they had consulted for legal advice about their claims. The journalist wished to write an exposé of the corrupt system of which the Applicant and Mr Guo had been victims.
However, on 22nd October 2007 the journalist was arrested by the PSB and shortly afterwards both Mr Guo and the Applicant were arrested. The lawyer was also arrested by the PSB. Eventually the lawyer, Mr Guo and the Applicant were released from detention on 1st December 2007 but required to undertake work under supervision and were placed at a construction site belonging to the very company whom the Applicant and Mr Guo wished to pursue to obtain their money.
Eventually the Applicant claimed that he was able to obtain one week’s leave on the pretext that his father was seriously ill and the Applicant took the opportunity leave China and eventually arrive in Australia.
A delegate for the Minister for Immigration and Citizenship refused the application for a visa on 22nd September 2008. The Applicant had been invited to attend an interview and in fact attended that interview on Friday, 2nd May 2008.
The delegate’s decision refusing the application was not made until some months later, on 22nd September 2008. The delegate did not find the Applicant’s claims to be credible.
In the Protection (Class XA) visa decision record the delegate set out a number of reasons as to why the delegate did not accept the Applicant’s account. Those reasons can be found at pages 67 through to 69 of the Court Book. In summary, the delegate said:
In considering all of the above, I find the applicant’s claims relating to his circumstances in China because of his political activities, lack credibility.[1]
[1] See Court Book at page 69.
Application to the Refugee Review Tribunal
After his application for a protection visa had been refused the Applicant applied to the Refugee Review Tribunal on 22nd October 2008 for review of the delegate’s decision. The Applicant did not provide any further documentary evidence to the Tribunal at the time of lodging his application.
On 17th November 2008 the Tribunal wrote to the Applicant’s migration agent inviting the Applicant to appear before the Tribunal at a hearing, which was scheduled to take place on 10th December 2008. However, that hearing needed to be rescheduled and a further date was set on 9th February 2009. The Applicant attended that hearing. His migration agent forwarded to the Tribunal a document several weeks prior to the hearing, which was said to be:
· A certified copy of a letter to the applicant by Yi Chun City Real Estate Comprehensive Development General Company as evidence in support of the applicant’s claims.[2]
[2] See Court Book at page 93.
The letter, in Chinese but with an English translation, referred to the Applicant having been granted one week’s leave on 19th March 2008 but had not returned to work. As a result, the board of directors decided to transfer the Applicant’s personal files to the Yi Chun Municipality Public Security Bureau and suggested that the Public Security Bureau should re-establish the case to investigate the Applicant. That letter was dated 2nd April 2008.[3]
[3] See Court Book at page 94.
When the Applicant attended the hearing on 9th February 2009 he was accompanied by his migration agent Mr Harry Huang. He gave evidence with the assistance of a Mandarin interpreter.[4]
[4] See Court Book at page 96.
The Tribunal hearing record showed that the hearing commenced at 11:10am and concluded at 2:38pm. The hearing was not concluded on the one day and a further hearing date was set, being 4th May 2009. The Tribunal hearing record 4th May 2009 shows that the Applicant attended the hearing, again accompanied by Mr Harry Huang. He gave evidence with the assistance of an interpreter in the Mandarin language.[5]
[5] See Court Book at page 113.
The Tribunal’s Decision
The Tribunal made its decision on 20th July 2009, confirming the decision not to grant the Applicant’s protection visa. In the decision record the Tribunal set out the Applicant’s claims and evidence, including his application for a protection visa and his Chinese passport showing a number of visas and entry stamps.
The Tribunal also noted that the Applicant had attended an interview with the delegate first on 2nd May 2008 and also on 14th August 2008. Tribunal noted that:
The delegate refused the application for a protection visa and the following matters were considered significant in coming to that decision.[6]
Then the Tribunal set out eight paragraphs with bullet points as to why the delegate found that the Applicant’s account lacked credibility, that summary of the delegate’s reasons can be found at pages 127 and 128 of the Court Book. The Tribunal also noted the Applicant’s application for review and the certified copy of the translated letter dated 2nd April 2008 from the Yi Chun City Real Estate Comprehensive Development General Company.
[6] See Court Book at page 127.
The Tribunal summarised the Applicant’s evidence given at the hearing on both dates. The summary of the Applicant’s evidence, given at the hearing on 9th February 2009, is set out in paragraphs [29] through to [65] of the Tribunal decision.[7] The summary of the evidence at the resumed hearing on 4th May 2009 is set out in the Tribunal decision at paragraphs [66] through to [86] of the decision.[8]
[7] See Court Book at pages 128 – 133.
[8] See Court Book at pages 133 -136.
I note that, at paragraph [85] of the decision, the Tribunal discussed with the Applicant the delegate’s decision and asked him if he wished to comment on the matters which the delegate found to be significant. The Tribunal set out six bullet points relating to a summary of the delegate’s reasons.[9] At paragraph [86] of the Tribunal decision, the Tribunal noted that it had discussed with the Applicant the letter from the Yi Chun Real Estate Development Company dated 2nd April 2008. The Tribunal noted the Applicant’s claims about how the letter had come into his possession and the Tribunal goes on to say:
I pointed out that false documents were relatively easy to obtain in China and that there were no way the contents of that letter could be independently verified. He stated that his wife had sent this letter with some clothes.[10]
[9] See Court Book at pages 135 and 136.
[10] See Court Book at page 136.
The Tribunal, in its decision record, referred to Independent Country Information relating to the relative ease by which fraudulent documents can be obtained in China and also referred to a UK Home Office Assessment report on China, which discussed people smuggling, particularly from Fujian Province. The Tribunal also referred to another report, again relating to people smuggling in particular from Fujian Province.
The Tribunal’s Findings and Reasons
In its findings and reasons, the Tribunal set out a summary of the Applicant’s claims to fear persecution and, having done this, the Tribunal said:
I did not find the applicant to be a truthful or credible witness. I formed this view for a number of reasons after hearing the applicant give evidence during both Tribunal hearings. He appeared to have knowledge of certain specific aspects relating to his written account of events such as dates, addresses and names. However when asked to give evidence outside this specific account of events, his evidence was at times vague, indistinct, contradictory and evasive.[11]
[11] See Court Book at page 138 at [98].
The Tribunal then set out a number of matters which caused it to form the adverse view of the Applicant’s credibility. Those matters included the Tribunal’s refusal to accept that the Applicant travelled to Yi Chun City to work, and lived in and worked there from January 2005 to March 2008. The Tribunal then set out, at [103] through to [107], as to why it did not believe this basic aspect of the Applicant’s claim.
The Tribunal also found that the Applicant’s evidence relating to his painting work between January 2005 and June 2006 was unsatisfactory and commented no the sparse detail provided by the Applicant and said:
The inability to describe his other painting work between January 2005 and June 2006 supports my finding that he did not live and work in Yichun City during this time and that his evidence is not truthful.[12]
[12] See Court Book at page 139 at [108].
The Tribunal did not accept the Applicant’s claim that he had attended the Mayor’s office to complain about his failure to be paid and, in consequence of that, did not accept that the Applicant was arrested and detained and noted the Applicant’s inability to describe the location of the detention centre, and gave scant details of its description.
The Tribunal did not accept the Applicant’s claim that he was approached by a trainee journalist who wished to write a story about the failure of the development company, to pay the Applicant’s unpaid labour fees. The Tribunal went on to find:
I do not accept the applicant’s claim that he was arrested in October 2007 because he had assisted a journalist in drafting a story about his treatment by the development company. I found the evidence relating to his claim of arrest, detention and mistreatment to be implausible and lacking credibility. The applicant claimed he was taken to the same detention centre but was not able to provide anything other than the most limited details of the location, physical description of the centre and his own daily routine.[13]
[13] See Court Book at page 140 at [112].
The Tribunal then went on to set out that it did not accept that after the Applicant and Mr Guo were released from the detention centre, they were obliged to perform forced labour at the development company, or that the Applicant obtained a week’s leave because of his father’s purported illness and did not accept that the Applicant fled from China to escape further mistreatment. The Tribunal went on to find:
I am supported in my findings that the applicant’s evidence lacks credibility and that he is not a reliable witness by the evidence relating to the manner in which he departed China. His evidence was implausible, evasive and inconsistent in parts.[14]
The Tribunal then set out, at [117] to [122], why it came to that finding.
[14] See Court Book at page 140 at [116].
The Tribunal also referred to the Independent Information to the effect that there are a large number of Chinese nationals from Fujian Province who arranged for people smugglers or “snakeheads” to facilitate their departure from China and migration to western countries for the purpose of improving their economic conditions. The Tribunal also noted the high level of document fraud in China and, in respect of the document produced by the Applicant’s migration agent, the Tribunal considered the Applicant’s explanation about the letter but found:
Taking into account my comprehensive findings of the applicant’s lack of credibility I have not given this document any weight in assessing his claims.[15]
[15] See Court Book at page 142 at [125].
The Tribunal did not accept that the Applicant faced a real chance of persecution for reasons of his imputed political opinion or any other Convention-related reason if he returned to China, and was not satisfied that he had a well-founded fear of persecution for any Convention-related reason.
Unfortunately, in preparing this decision, the Tribunal made an error in relation to the conclusion in [128]. That error, however, was corrected by a corrigendum on 17th August 2009 which was forwarded to the Applicant’s migration agent. The corrigendum says:
The following corrections are made to the decision:
Paragraph 128 of the decision is deleted and replaced by the following paragraph:
“ 128. The Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in subsection 36(2)(a) for a protection visa.”[16]
[16] See Court Book at page 147.
Application for Judicial Review
The Applicant commenced proceedings in this Court on 18th August 2009 by filing an application and an affidavit in support. The orders sought have a familiar ring and indeed I saw the very same five orders sought in an application in a matter that I heard yesterday.
The first order sought is for a declaration that the decision was invalid and contrary to law. Order two, however, says:
An order that the decisions and each of them referred to above be quashed or set aside.
The reason for this application to quash or set aside more than one decision cannot be understood. There is only one decision under review and that is the decision of the Refugee Review Tribunal that was made on 20th July 2009. The third order that is sought seeks an order in the nature of Mandamus and it says:
An order that the matter be remitted to a differently constituted Tribunal to be determined in accordance with the law.
At the commencement of the hearing, I explained to the Applicant that if the Court were satisfied that jurisdictional error had been made out and if the Court were then to remit the matter to the Tribunal for determination according to law, it would not be making an order requiring the Tribunal to be differently constituted. It is in my view well-established that the Federal Magistrates Court does not have the power on remitting a matter to the Refugee Review Tribunal to make an order that the Tribunal be differently constituted. That is a matter for the Principal Member. (See SZEPZ v Minister for Immigration and Multicultural Affairs[17]).
[17] [2006] FCAFC 10
However, as it was explained to the Applicant, the Court would only grant the relief sought if it were satisfied that the decision was affected by jurisdictional error. The Applicant relies on three grounds:
i)A breach of s.424A(1) of the Act;
ii)A failure to comply with s.425 of the Act; and
iii)A claim that the decision of the Tribunal includes reasonable apprehension of bias.
The Applicant has also filed a written outline of submissions, which is a comprehensive four-page document. It does not entirely coincide with the grounds set out in the application. It would appear that it is a template decision because the general statements about jurisdictional error in the nature of a claim of jurisdictional error are not only different from the grounds set out in the application but are identical to matters set out in a similar written submission in the matter that I dealt with yesterday. I will read those two quasi grounds onto the record:
1. This is submitted that the finding of the Refugee Review Tribunal (“the Tribunal”) has included a reasonable apprehension of bias; and that the Tribunal has made its decision based on nothing but its own unwarranted assumption; that the Tribunal failed to ensure me to understand its questions; and that the Tribunal failed to create genuine opportunities for me to give my evidence or present my arguments against the issues arising from my review application.
The second part of the submission says:
2.This is submitted that the Tribunal has misstated by claims and distorted my evidence and that the Tribunal has made completely incorrect findings.
Each of those general statements is followed by lengthy particulars going to the Applicant’s particular claims which contain quotes of several paragraphs of the Tribunal decision and the Applicant’s arguments against them. I will deal with them in due course.
Submissions
The Applicant attended Court today and has made submissions with the assistance of an interpreter in the Mandarin language. In his oral submissions, he complained about the Tribunal’s finding that he did not go to Yi Chun City and its subsequent disbelief of his evidence as to what transpired there.
He submitted that he went there to work and not to see the sites and was too busy with his work so that he did not pay too much attention to his surroundings. He did not read newspapers or know what was surrounding him. He noted the Tribunal Member asked him about important events that occurred in Yi Chun City but again said that he did not do anything to find out about what they were because his goal was to make money to support his family. He complained that the Member did not ask questions very clearly so he did not know entirely what to answer.
He complained that the Tribunal Member thought that he gave inconsistent answers, but he said that his answers were not inconsistent. He complained about the Tribunal’s finding of the way that his travel arrangements were made and pointed out that he had told the Tribunal that his friend had arranged for that travel for him to come to Australia. The Applicant complained that he was not given a chance to expand on his evidence. He just answered the Member’s questions, so the Member did not believe him.
The Applicant has not filed a transcript of hearing and the evidence that the Court has as to what took place at the hearing is the Tribunal decision record. That document is, however, a detailed and comprehensive document going as it does from page 122 through to 142 of the Court Book. I would comment that the corrigendum to correct the error in paragraph 128 was an appropriate use of a corrigendum and it was intended to cover an unfortunate slip where clearly the word “not” was omitted in the conclusion paragraph. No error arises from the use of the corrigendum and in my view, it was applied correctly.
I have had the benefit of reading the written outline of submissions prepared by Mr Bevan of counsel, who also made oral submissions in reply to the Applicant’s written submissions and the Applicant’s oral submissions. The necessity for counsel for the First Respondent to reply orally to the Applicant’s written submissions was that the Applicant’s written submissions were not filed until 10th November 2009, which was the same day that the Minister’s outline of submissions was filed.
Thus, the written outline of submissions replies to the matters contained in the Applicant’s application but not to the Applicant’s outline of submissions. I have taken all those matters into account.
The overall point that needs to be made is that the Tribunal decision is one that rests very heavily on the Tribunal’s adverse findings as to the Applicant’s credibility. It is well-established that credibility is a matter for the administrative decision-maker, in this case the Member of the Refugee Review Tribunal (See ReMinister for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham[18] at [67])
[18] (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1
It is also well-established that a Court conducting judicial review does not engage in merits review. It does not reconsider the Tribunal’s factual findings and substitute its own view of the facts for the conclusion arrived at by the Tribunal. As long as the decision made by the Tribunal is open to it on the evidence, then there is no jurisdictional error and it is of no concern that perhaps another Tribunal, or the Court, may have formed a different view on the evidence.
Considerations
It is also well established that an error of fact is not a legal error and it is certainly not a jurisdictional error. That said, the Court will consider the Applicant’s claims.
Ground 1
The first ground upon which the Applicant seeks to rely is a failure to comply with the Tribunal’s obligations under sub-section 424A(1) of the Migration Act. The Applicant claims that the Tribunal did not provide to him for his comment, in the way set out by sub-section 424A(1), the following information which would be a reason or a part of the reason for affirming the decision under review.
The claim he makes, i.e. the information that he refers to is as follows:
· I might not be able to describe Yichun City or its surroundings and I might not be able to tell the Tribunal any landmarks or places of interest.
· I might not be able to recall any important events or incidents which had occurred in the city during the period of time I lived in the city (at the Departmental interview).
· I might give inconsistent accounts of where I lived during the time I was in Yichun City and I might not give clear information about whether or not I worked as a painter in Yichun City after I was released.
The first thing to be said is that none of the matters in the Applicant’s particulars come under the requirement for the Tribunal, under sub-section 424A(1) of the Migration Act. As counsel for the First Respondent has pointed out, the Applicant’s inability to describe Yi Chun City and his inability to recall any important events or incidents which had occurred in the city, do no more than relate to the Tribunal’s own analysis of the Applicant’s evidence and the Tribunal’s reason in process. In any event, even if that were information for the purpose of section 424A, and clearly it is not, it is no more than a description of evidence which came from the Applicant itself, and is therefore excluded by the operation of sub-section 424A(3)(b) of the Act.
As the Tribunal’s finding of the Applicant gave inconsistent accounts of where he lived, and inconsistency, of course, is not information for the purpose of section 424A, and whether or not the Applicant gave clear information about whether he worked as a painter in Yi Chun City all arises from evidence that the Applicant gave to the Tribunal. It is specifically excluded by the operation of sub-section 424A3(b) of the Act.
What the Applicant does, however, in his written outline of submissions, is to attempt to re-argue the factual matters referred to in paragraphs 103, 104 and 108 of the Tribunal’s decision. The Applicant’s argument, which goes on for over a page, sets out in great detail the Applicant’s claim that he only went to Yi Chun City to work and did not know anything about its landmarks. He complains that he had to work nine or 10 hours a day with no newspapers or TV sets, all of which are no more than an attempt to cavil at the Tribunal’s factual findings and re-argue the factual merits of his case. That does not go anywhere towards establishing that there’s been a breach of section 424A of the Migration Act.
The submission also goes on to complain as follows:
Thirdly, although the Tribunal asked me about jobs I had undertaken, together with the painting team in Yi Chun, the Tribunal has never ever ensured me to clearly understand that the Tribunal actually wanted me to give all details about all jobs I had been involved in in Yi Chun. It is significant evidence that the Tribunal failed to create genuine opportunities for me to give my evidence or present my arguments against the issues arising from my review application.
In this claim the Applicant is seemingly merging a complaint of a breach of section 424A of the Migration Act with a complaint about a failure to be given a fair hearing under section 425 of the Migration Act. The claim must be rejected. The Applicant is essentially claiming that the Tribunal did not ask him the right questions or did not ask him enough questions and thereby give him an opportunity to satisfy the Tribunal.
It is always up to an applicant to provide the evidence to the Tribunal, which will allow to be affirmatively satisfied that the Applicant meets the requirements for a visa. In short, there is no breach of section 424A of the Migration Act and the Applicant’s first ground of review must fail.
Ground 2
The Applicant’s second ground of review complains of a failure of a breach of or a failure to comply with the requirement of s.425 of the Act to provide a fair hearing. This is a matter, as counsel for the First Respondent has pointed out, that has been the subject of a recent decision of the High Court of Australia in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[19].
[19] (2006) 228 CLR 152
In his application the Applicant sets out particulars of his claim, in that he concedes that whilst the Tribunal did invite him to appear, it failed to create any genuine opportunity for him to give oral evidence and present argument relating to the issues arising in relation to the decision under review. There is no evidence to support that claim whatsoever.
The Applicant has not provided a transcript of the Tribunal hearing. It is difficult to see how an applicant, who attends a hearing with a Mandarin interpreter provided at his request, and accompanied on each occasion by his migration agent, has in some way been denied the opportunity to give oral evidence and present arguments relating to his claim, because those are the facts here.
The Tribunal had two hearings. The reason for that is that it ran out of time on the first occasion and adjourned the hearing to another day. In the Tribunal decision record in respect of the evidence on the first hearing date, which was 9th February 2009, the Tribunal said:
At this point I told the applicant that we had exhausted the time allocated for the hearing and would adjourn the hearing to a later date.[20]
[20] See Court Book at page 133 at [64].
I note from the Tribunal hearing record, and as I said earlier, the Applicant’s migration agent attended on each occasion. The Applicant goes on, in his particulars to claim:
The Tribunal has never ever made me to understand what its genuine issues or concerns will be in relation to my review application at the Tribunal’s hearing. On many occasions, I thought that I had already clearly explained everything to the Tribunal; and the Tribunal had already accepted or understood my claims; and I did not need to say more or to explain more. But, in fact, it was completely incorrect. I have completely been misled by the Tribunal; and as a result, I do not have any genuine opportunity to give oral evidence and present arguments relating to the issues arising in relation to the decision under review.
The first point to be made is that the Applicant attended not one, but two interviews with the delegate. The delegate’s decision made it clear that the delegate did not accept the Applicant’s claims. In particular the delegate expressed doubt about the Applicant having spent the time working in Yi Chun City.
The Applicant has referred to this matter, because again it was a matter where the Tribunal expressed considerable doubts, in particular, at [103] and [104] of the Tribunal decision. What the delegate said in respect of this matter is as follows:
The applicant claims that he lived in Yichun City from 2005 until 2008. At interview, the applicant stated that Jian Hua Gong was the Yi Chun City Mayor in 2005 and remained in office when the applicant left in 2008. Country information reports that Jian Hua Gong only became Mayor of Yi Chun City on 9/12/2006. Also, at interview, when he was asked if there were any natural disasters including flooding in Yi Chun City between 2005 and 2008, the applicant initially stated that there were not. Later, when asked again if there were any flooding the applicant stated that there was but it was not that serious. Country information reports that heavy storms hit Jiangxi Province including Yichun City in April 2006 resulting in significant flooding and damage to houses and crops. I do not find it credible that the applicant would not recall such an incident particularly if he was in the building industry and living in the city in 2006.[21]
[21] See Court Book at page 67.
The Tribunal, at the hearing on 4th May 2009, put these matters from the delegate’s decision specifically to the Applicant. The Tribunal referred to two matters in two dot points:
(a)The applicant claimed that the Mayor of Yi Chin City was Jian Hua Gong from 2005 to 2008. Country information indicated that Gong had become the mayor at the end of 2006. At the Tribunal hearing the applicant claimed he was not sure but knew that Gong was the mayor in April 2007.
(b)The delegate noted that the applicant did not recall the heavy flooding which took place in 2006 and he would have expected him to recall this if he had lived in Yi Chun City. At the Tribunal hearing the applicant stated that he did not know what the delegate meant by this.[22]
[22] See Court Book at page 135 at [85].
The fact is that the Tribunal put to the Applicant at the hearing all of the matters which had caused the delegate to doubt the veracity of the Applicant’s claims. The Applicant was given the opportunity to reply and comment on these matters, and would have been left in no doubt that these matters of credibility were in issue. And, it should be recalled, he was accompanied by an experienced migration agent.
The Applicant’s challenge to the Tribunal as having breached s.425 of the Migration Act appears to me, in his submissions, to be as much an attempt at merits review as it is a complaint that he did not get a fair hearing. An effort by an applicant to show a failure by the Tribunal to provide a fair hearing under the provisions of s.425 of the Migration Act is not an invitation for an applicant to set out to cavil with the Tribunal’s reasoning and cavil with the Tribunal’s factual findings about key parts of the Applicant’s case.
I am not satisfied that there is any breach of section 425 of the Migration Act. The Applicant’s second ground fails.
Ground 3
The third ground claims a reasonable apprehension of bias. The particulars of this claim say:
It is no doubt that the Tribunal has made its decision based on nothing but its own unwarranted assumption. Its decision is definitely with a reasonable apprehension of bias.
In my view, the Applicant has not shown any evidence to allow the Court to find that there was bias on behalf of the Tribunal – whether apprehended bias or actual bias. The test for apprehended bias has been well set out by the High Court of Australia in Re Refugee Review Tribunal; Ex parte H[23] at [27] to [28] and there is nothing in the Tribunal decision which supports a finding of bias.
[23] (2001) 179 ALR 425; 75 ALJR 982
The Applicant claims, in his submission, that his evidence has been misstated or distorted by the Tribunal. There is no evidence of this. All that the Applicant has done is seek to cavil with the Tribunal’s factual findings.
In his written submissions, the Applicant complains also that the Tribunal has made completely incorrect findings. That, of course, is no more than a challenge to the Tribunal’s factual findings. As I have said before, an error of fact (even if there were one) is not an error of law, let alone a jurisdictional error. (See Abebe v Commonwealth[24])
[24] (1999) 197 CLR 510
I note that in the written submissions, the Applicant says in his final paragraph:
So, I never ever think that my evidence in relation to my departure from China was inconsistent. On the contrary, it has been misstated or distorted by the Tribunal if we listened to the recording CD of two Tribunals hearings fairly and carefully.
I note that the Applicant has apparently not sought to have the Court listen to the CD of the Tribunal’s hearing because no application was made prior to the hearing, or at the outset of the hearing. Accordingly, if it was ever the Applicant’s intention to make that claim, I am taking him to have abandoned it.
The Applicant’s third ground fails.
Conclusion
There is no jurisdictional error - all three of the Applicant’s grounds of review fail. In the absence of jurisdictional error, the Tribunal decision a privative clause decision as defined by sub-section 474(2) of the Migration Act. As a privative clause decision, it is final and conclusive and not subject to declaration or orders in the nature of certiorari or mandamus. It follows that the application will be dismissed.
There is an application for costs on behalf of the First Respondent Minister. This is an appropriate matter for a costs order. The amount sought is appropriate, counsel was briefed. The Applicant is to pay the First Respondent’s costs, fixed in the sum of $5,865.00.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 1 December 2009
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