SZNWS v Minister for Immigration

[2009] FMCA 1287

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNWS & ANOR v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1287

MIGRATION – Review of RRT decision – applicants born in Australia of Chinese parents – where actual bias alleged.

Migration Act 1958 (Cth) s.424A

Savic v Minister for Immigration [2001] FCA 1787
SCAA v Minister for Immigration [2002] FCA 668
Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425
NAJO v Ministerfor Immigration [2004] FCA 356
NBKT v Ministerfor Immigration [2006] FCAFC 195
SZEEU v Minister for Immigration (2006) 150 FCR 214

First Applicant: SZNWS

Second Applicant: SZNWT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2156 of 2009

Judgment of: Raphael FM

Hearing date: 18 December 2009

Date of Last Submission: 18 December 2009

Delivered at: Sydney

Delivered on: 18 December 2009

REPRESENTATION

For the Applicants: Applicants’ mother

Solicitors for the First Respondent: DLA Phillips Fox

ORDERS

1. Application dismissed.

2. Applicants’ mother, as the litigation guardian for the applicants, to pay the First Respondent’s costs assessed in the sum of $5,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2156 of 2009

SZNWS

First Applicant

SZNWT

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants in this case are two children born in Australia of Chinese parents, both of whom applied unsuccessfully for protection visas.  Because the children have never been to China, and are both very young, their claims to be persons to whom Australia owed protection obligations had, of necessity, to be reflective of their parents’ claims and the Chinese laws relating to persons who had more than one child.

2. Additionally, in this particular case, because the parents were not married, they both having spouses still living in China, and because the mother of the children no longer had any Chinese identification papers, it was suggested that the children were stateless.  Statelessness alone is not a ground for protection.  The applicants appeared before the Tribunal through their parents in order to raise the claims which I have set out above.  It was put by the children’s father that they would be imputed with an unfavourable political opinion because he had been a member of the armed forces who had been involved in parachuting into Tiananmen Square on 4 June 1999, and had eventually been cashiered from the army because of his refusal to shoot at demonstrators.

3. The Tribunal considered all these matters in a detailed and thorough reasons for decision. There had been two hearings before the Tribunal and after the second hearing the Tribunal sent to the parents a letter pursuant to s.424A Migration Act1958 (Cth) (the “Act”) [CB 156-168]. The letter sets out in detail all those matters upon which the Tribunal had concerns arising from the evidence given at the Tribunal hearings and from documentation previously provided. The applicants’ parents, through a migration agent, responded to this letter [CB 169-173]. The Tribunal came to conclusions in its findings and reasons [CB 210-222] on all the issues raised by the applicants, or on their behalf. It commenced with the claims that the children were stateless, and determined, having considered article 5 of the Chinese Nationality Law, that this was not the case because the children’s father was able to establish that he was a Chinese national and only one parent needed to be Chinese in order to bestow Chinese citizenship upon the children. To the extent that the applicants may contest that finding by the Tribunal, a finding on a question of foreign law is, of course, a question of fact and not of law; Savic v Minister for Immigration [2001] FCA 1787, and a wrong finding of fact on this matter would not constitute a jurisdictional error. The Tribunal then considered the claims that the children would suffer because of the Chinese one child policy. The Tribunal reluctantly accepted the parents’ evidence that each of them already had a child in China. Its reluctance was mostly in relation to the child claimed by the mother, because it would seem that the child claimed by the father had obtained a visa to enter and study in Australia and was presently in this country. The Tribunal then proceeded to analyse the independent country information concerning the one child policy, particularly as it was put into effect in the parents’ home province of Fujian. The Tribunal concluded that this local authority would allow the parents to register their children and charge them a registration fee which it believed they would be able to afford. It went on to say that, even if they did not register their children, there were many private schools and clinics that would enrol or treat them, and that the fees were not excessive by Chinese standards:

   “The Tribunal is satisfied that, if the applicants’ parents chose not to register their children, their children could be educated in private schools and could obtain medical treatment in private clinics.  The Tribunal accepts the country information that indicates that “black children” are unlikely to suffer ostracism or ill-treatment as a direct consequence of their status.  The Tribunal finds the applicants will not suffer discrimination amounting to serious harm if their parents choose not to register them.”

4. The Tribunal then considered a claim that the children would suffer because their parents had not married, but made a finding pursuant to article 25 of the Chinese Marriage Law (also a finding of fact), that children born out of wedlock enjoyed the same rights as children born in wedlock, and that they were entitled to receive birth certificates and household registration, so that, if the parents chose not to marry, the children would not suffer discrimination amounting to serious harm.

5. The Tribunal proceeded to consider the claims made by the father concerning the imputed political opinion that he claimed would affect the children.  The father was questioned in some detail about the events that he claimed occurred on 4 June 1989.  The Tribunal expressed considerable doubts about them, in particular, about the father’s statement that he jumped out of a helicopter into Tiananmen Square.  The father did produce a psychologist’s report, which the Tribunal considered, but gave little weight to because the psychologists had only seen the applicants’ father on one occasion in July 2009 for a short period of one and a half hours, and that the opinion given was based upon the information provided by the father:

   “The psychologist has not suggested in his report that the applicants’ father’s symptoms would have affected his evidence, or would have affected his memory of past events.”  [194] [CB 219]

6. The Tribunal applied its knowledge of events at Tiananmen Square and the independent country information to come to a finding that it could not accept that he was involved in that particular incident.

7. The applicants come to this Court seeking relief based upon an amended application filed on 19 November 2009. The amended application commences with the claim that:

   “The Tribunal member has been very biased to our application.  She has refused to accept any evidence and words from us.”

   Particulars are provided of extracts from the transcript of the hearing.  One of the major concerns indicated in the particulars, and articulated to me by the children’s mother at the hearing, was the frequent use of the phrase by the Tribunal “I am having difficulty with that” as well as other indications on the part of the Tribunal that it did not believe the applicants’ parents’ evidence, such as the comment by the Tribunal:

   “I find your description of jumping out of a helicopter from two or three storey’s height implausible.”

8. I have taken the opportunity to read through the transcript myself because I accept the submission made by the respondent that when an allegation of bias is made it has to be looked at in the context of the whole hearing, and one cannot isolate particular comments for consideration.  The view that I have come to is that the Tribunal was doing no more than testing the evidence with the expected vigour given that the evidence being put forward by the father was effectively a re-run of his own application which had already been rejected.  Some comments made by the Tribunal such as:

   “You are not answering my question and I am having difficulty with that.”

   when taken out of context, may look as if the Tribunal is acting aggressively towards the witness, but, when considered in the context of the whole, could equally be said to be making it clear to the witness the difficulties that the Tribunal is having with his evidence.

9. The claim being made here is certainly one of actual bias.  The applicants’ claim that against the Tribunal Member who heard their case, and also against the Tribunal as an institution because they asked the Tribunal to replace the Member after the first of the two hearings, and the Tribunal declined to do this.  They also say that they asked the Tribunal for a postponement of the second hearing and that was refused.

10. Actual bias was defined by von Doussa J in SCAA v Minister for Immigration [2002] FCA 668 at [36] as:

    “Actual bias arising from prejudgment involves a state of mind by the decision maker whilst exercising the decision making power that is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. "The question is not whether a decision maker's mind is blank; it is whether it is open to persuasion": Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 at [71] - [72] per Gleeson CJ and Gummow J. That decision also stresses that a party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be "distinctly made and clearly proved": at [69] per Gleeson CJ and Gummow J and [127] per Kirby J.”

    His Honour went on to say at [38]:

    “In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion.”

11. In this case, we do have the benefit of the transcript, and that transcript undoubtedly shows some vigorous questioning of the parties.  But as the High Court said in Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425 at [30]:

    “Whereas in the present case credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously.  Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit, or which brings his or her account into question.”

    In NAJO v Ministerfor Immigration [2004] FCA 356, Moore J said at [24]:

    “The Tribunal member was plainly skeptical of the appellant’s claims and took a fairly vigorous approach in testing them.  However, this falls well short of establishing that the Tribunal approached its consideration of the appellant’s claims with a closed mind.”

12. In my view, the remarks made by the Tribunal fell firmly within the parameters laid down by these authorities.  The applicant makes comments about the Tribunal’s body language and fierce looks.  I am afraid that I am unable to assist her in regard to these because I do not have a video of the hearing, nor have I been provided with the CD of the recording.  But I do note that, when the Principal Member investigated the complaint made by the applicants [CB 131-132], the Principal Member did listen to the tape, and came to the conclusion that the Presiding Member had not displayed any bias towards the applicants’ parents.  I cannot see the decision of the Tribunal not to change the Presiding Member constituted bias against the applicants or their parents.  The evidence suggests that proper procedures were followed, and that a genuine decision was made by the Principal Member based upon a thorough investigation of the situation.

13. Insofar as there is a complaint of bias arising out of the failure of the Tribunal to grant extra time before the second hearing, I cannot accept this as evidence of bias either.  The applicants were not to know that they were going to have two hearings.  They should have prepared all their case for one hearing.  As it was, because of the complaint made, some weeks passed between the first and second hearings which the applicants could have used to prepare.  The decision of the Tribunal not to grant the adjournment was, therefore, not only not evidence of bias, but understandable.

14. I have dealt with paragraphs 1 and 2 of the applicant’s amended grounds.  Paragraph 3 deals with alleged mistaken findings of fact on the part of the Tribunal.  It complains that the Tribunal opened its hearing by telling the parties that the hearing was not an opportunity to reopen claims made by the parents to previous Tribunals, and that what the Tribunal was looking at was the effect on the children.  It then complains that the Tribunal then spent most of the interview time talking about the claims that were made by the parents.  This is understandable, firstly, because the children themselves were too young to contribute anything towards the Tribunal hearing and, secondly, because the claims that were being made by the children arose out of their relationship to their parents.  And as the claim of imputed political opinion was made, it was necessary to re-examine the events which had already been considered in relation to the father’s original application.

15. The fourth ground is:

    “The Tribunal member has erred in stating that “I prefer to be generous and give you the opportunity, even though you have had the opportunity today, to respond to information on their behalf”. Given section 424 of the Migration Act, a member should write to the applicant to explain in writing the conflicts the member still holds after assessing all the information in hand. It should not be out of her generosity. She is obliged to do so. From her words, it is not difficult to tell that, no matter what you are going to say, it is said today and I am not going to believe you.”

16. This is really a claim of bias on the part of the Tribunal, and it is predicated on a misunderstanding of the law by the applicants or those advising them. In fact, the s.424A letter that was written by the Tribunal was not required because there was no new information that needed commenting upon. Most of the letter is taken up with inconsistencies in evidence and comments about independent country information. In NBKT v Ministerfor Immigration [2006] FCAFC 195 Young J (with whom Giles and Stone JJ agreed) referred to the meaning of information considered by Allsop J in SZEEU v Minister for Immigration (2006) 150 FCR 214 at [204-205] and then said at [30]:

    “In contrast with the above, the Tribunal's subjective appraisals, thought processes or determinations are not information for the purposes of s 424A: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [54], Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 (Paul) at [95] per Allsop J and VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (VAF) at [24] per Finn and Stone JJ. The concept of information does not extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [26]-[27].”

    Independent country information is of course excluded from the definition.

1. The applicants appeared before me today through their mother who complained that the Tribunal had consistently told the witnesses that it could not believe what was said.  In fact, the Tribunal did not do that, although it did say on numerous occasions that it was having difficulty believing matters or that it was having difficulty with matters.  The mother said that the father went to the hearing and was interrogated in a way that should not happen in Australia.  My reading of the transcript would indicate that the father’s evidence was tested vigorously but could never be said to have descended to an unfair interrogation.  The mother complained that she had asked the Tribunal to change the member but it had refused, and that the second hearing was too close to the first hearing and they were not fully prepared.  I have dealt with these matters.  The mother also complained about the fact that the Tribunal did not look at a letter from the department.  This letter was written by the department and addressed to the Chinese Embassy in the hope that the Embassy would grant the children Chinese passports.  This did not happen and was used by the parents to corroborate their case that the children were stateless.  The Tribunal did not decide the matter on the basis of what the Chinese embassy had done, but on the basis of its understanding of Chinese law, and, thus, whether or not the Tribunal looked at the letter was not relevant to its decision.  The mother complained that the Tribunal did not believe that her husband had taken part in the events at Tiananmen Square, but that is no more than seeking impermissible merits review from this Court.  She said that the husband was hurt as a result of the first hearing and had a psychological problem and couldn’t participate in the second hearing, but in fact he did and he at no time made any complaints about his inability to provide the Tribunal with evidence and make submissions.

2. In these circumstances, I am unable to find that the Tribunal fell into jurisdictional error in the manner in which it reached its decision in this case.  I am unable to find that it was biased, as indicated by the applicant.  The application is dismissed.  The applicants’ mother has been appointed litigation guardian for the children and she shall pay the respondent’s costs which I assess in the sum of $5,500.00.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  22 December 2009