SZNYO v Minister for Immigration
[2009] FMCA 1272
•1 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNYO v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1272 |
| MIGRATION – Review of decision of Refugee Review Tribunal – no failure to comply with s.424A – Tribunal complied with s.425 – no bias – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 425 |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 SZMJE v Minister for Immigration & Citizenship [2008] FCA 1751 SZLOJ v Minister for Immigration & Citizenship [2008] FCA 1693 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 Mahzar v Minister for Immigration & Multicultural Affairs [2002] FCA 1759 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 157 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 Minister for Immigration & Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 157 VBAP of 200 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965 Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 |
| Applicant: | SZNYO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2370 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 1 December 2009 |
| Date of Last Submission: | 1 December 2009 |
| Delivered at: | Sydney |
| Delivered on: | 1 December 2009 |
REPRESENTATION
| Appearing for the Applicant: | In person |
| Solicitors for the Applicant: | - |
| Counsel for the Respondents: | Ms L Clegg |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 28 September 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2370 of 2009
| SZNYO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
I have before me an application made on 28 September 2009 made under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal made on 27 August 2009 (“the Tribunal”), which affirmed the decision made by a delegate of the first respondent to refuse a protection visa to the applicant.
Background
The applicant is a citizen of the People’s Republic of China (“China”). He arrived in Australia on 17 January 2009. He applied for a protection visa on 3 March 2009, and a copy of this application is contained in the bundle of relevant documents put before the Court by the Minister (Court Book – “CB”, CB 1 to CB 29). I note also that he was assisted by a migration agent in making this application (CB 28).
Claims to Protection
The applicant’s claim to protection was that he feared persecution by the Chinese authorities on the basis of what was said to be imputed political opinion.
The applicant claimed that he and a friend organised a team to perform certain construction work for a particular company (“the Longhua Company”). They were not paid a large part of the contract fee. Negotiations, and attempts through a number of government agencies, to address this problem failed. This occurred some time during 2008 (CB 18).
In August 2008 the applicant and his friend organised a protest. They were arrested by security guards. The police did not provide any help. In fact, they alleged that the applicant and his friend organised an anti-government protest at a time during the Olympic Games in China. They were interrogated and tortured by officers of the Public Security Bureau (“PSB”). The applicant claimed to have been detained for over a month.
Ultimately, under duress, he signed a confession about what was said to be his anti-government activities. He was released only after his wife paid a fine, and he agreed that he would not claim the unpaid moneys from the construction company.
Nonetheless, upon their release, he and his friend considered ways of pursuing what was said to be their appeal. They were ultimately assisted by a person who he said was from the Law Department of the Fujian Province People’s Government. This person was subsequently killed in what was said to be a car accident (CB 18 to CB 20).
Some days later in December 2008 his friend was arrested and detained. The applicant went into hiding and discovered that the police had also gone to his home to arrest him. With the help of a distant relative he remained in hiding until he arranged a false passport and a different identity to be able to leave China. During this time the authorities went to his house with an arrest warrant on a number of occasions (CB 20).
The Delegate
The Minister’s delegate refused the application. (The delegate’s decision record is reproduced at CB 44 to CB 50.) As I understood the delegate’s decision, it was based on the finding that the essential and significant reason for the harm feared was not because of his political opinion, whether imputed or actual. Therefore, there was no Convention nexus to his factual claims.
In what could be said to be in the alternative the delegate found that he could not be satisfied that the applicant had substantiated a claim to fear Convention related persecutory harm, given the unsatisfactory nature of some aspects of what he told the delegate at an interview, and in the absence of any documentary evidence to support his claims.
The Tribunal
The applicant applied for review by the Tribunal on 27 May 2009. (The application is reproduced at CB 52 to CB 55.) He was again assisted by the same migration agent, a Mr Harry Huang of Priscilla International Co (CB 53).
The applicant attended a hearing before the Tribunal on 28 July 2009 (CB 65 and CB 60). (I note, for the sake of completeness, that the Tribunal’s account states that the hearing took place on 27 July 2009. I refer here to what is set out at [25] of the Tribunal’s decision record. But other evidence before the Court would suggest that it was actually 28 July 2009. In any event, nothing really turns on what is clearly just a simple mistake in presentation.)
The Tribunal found that the applicant had not given a truthful account of his past experiences in China ([58]). It found that his claims of harm were said to arise from the circumstances of the construction work that he had done for the Longhua. The Tribunal found that these claims of his business activities had been fabricated ([59]).
Its reasons were essentially as follows:
1.The applicant’s limited knowledge of the claimed establishment of his business in China ([60] at CB 89).
2.The inconsistency in the applicant’s evidence that his business was not a company, despite the fact that it was described as such in a document which the applicant himself had provided to the Tribunal at the hearing. The Tribunal found that the applicant could not provide any plausible basis for his perceived lack of knowledge in this regard ([61]).
3.Inconsistencies in the applicant’s evidence at the hearing about the claimed business activities and what he had put in writing in his protection visa application ([62]).
The Tribunal also found that his claims regarding his subsequent treatment in China were implausible and unbelievable ([63]). It also found that the documents relating to his claimed detention and business activities, which had been provided by the applicant, were not such as to constitute a reliable basis to establish any interest in him by the authorities. A third document provided by the applicant was found not to be sufficiently persuasive such as to overcome its concerns about the veracity of his claims ([64] at CB 90). The Tribunal gave reasons for its findings.
Having rejected the applicant’s factual account of what he said had occurred in China, based on an adverse finding as to the applicant’s credibility, the Tribunal found that he did not have a well founded fear of persecution for any Convention reason if he were to return to China ([65]).
Given that conclusion, and given that, on any plain reading of the Tribunal’s decision record, this conclusion was made absent any doubt, it is difficult to understand why the Tribunal then went on to consider the alternative situation, as though it accepted that the applicant’s factual claims were credible ([66]). In these circumstances, and in any event, the Tribunal found that there was no necessary Convention nexus ([67] to [70]). I will return to this matter later.
The Application to the Court
The application puts forward three grounds with particulars. The first is an alleged failure on the part of the Tribunal to comply with its obligations pursuant to s.424A(1) of the Act. The second is an assertion that the Tribunal failed to comply with its obligations under s.425 of the Act. The third is that the: “Tribunal’s decision has included a reasonable apprehension of bias.”
Hearing Before the Court
The applicant appeared in person before the Court. He was assisted by an interpreter in the Mandarin language. Ms L Clegg of counsel appeared for the first respondent. I note that in addition to the Court Book, I also have before me written submissions filed on behalf of the Minister.
Before the Court the applicant recounted the factual claims that he had made to the Tribunal. He then read from a written statement. (He at first said this written statement had been prepared by a “friend”, but I then understood this to be the son of a work colleague.) I accepted that these statements were made in the nature of submissions.
The applicant, in essence, recounted the grounds with some of the particulars that were set out in the application to the Court, except for one additional matter, which was the applicant’s suggestion that the inconsistencies perceived in his evidence by the Tribunal were due to what he said was a “mistranslation” at the hearing.
Consideration
To the extent that what the applicant has said to the Court invites the Court to substitute its own findings of fact for those of the Tribunal, as Ms Clegg submitted, this Court cannot intervene to do that. It is not the task or the role of this Court to engage in what can be described as impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
Turning to the grounds as pleaded and particularised and, in a sense, as emphasised by the applicant’s submissions before the Court, I find the following in relation to each of the grounds.
Ground One
Ground One asserts a breach of s.424A(1) of the Act. The applicant particularises this complaint with reference to information about business registration and business operations in China, and inconsistencies found by the Tribunal between what he put in his protection visa application, and evidence that he gave to the Tribunal.
I note the Minister’s relevant submissions ([20]). This ground does not succeed. I make the following points, particularly having regard to the applicant’s particulars:
(1)Information about business registration and business operations in China on which the Tribunal relied (in particular, what the Tribunal set out in its decision record at paragraphs [31], [35], [55], [60] and [61]) is, and can be said to be, non in-personam information. That is, information that is not about a person, and as such, information that falls within the exception contained in s.424A(3)(a) of the Act from the obligation in s.424A(1) (Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 at [71], VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82 at [12] to [14], QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [22] and [26]).
(2)Information which the applicant gave in writing in connection to his protection visa application comes within the exception contained in s.424A(3)(ba).
(3)Information included in the evidence given by the applicant to the Tribunal in the course of the review falls within the exception set out in s.424A(3)(b) (SZMJE v Minister for Immigration & Citizenship [2008] FCA 1751 at [22], SZLOJ v Minister for Immigration & Citizenship [2008] FCA 1693 at [15]).
(4)The applicant’s reliance on the inconsistencies found by the Tribunal to assert a breach of s.424A(1) is misplaced, as the Minister submits, given that such inconsistencies are not “information” for the purposes of s.424A(1). (See SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 at [17] and [18], per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ, and the reference there to VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 at 476 to 477, as referred to in the Minister’s submissions.)
In all, therefore, I cannot see, either as particularised by the applicant, or otherwise, that there was any failure by the Tribunal to comply with its obligation under s.424A(1) of the Act. Ground one therefore fails to reveal jurisdictional error on the part of the Tribunal.
Ground Two
In Ground two the applicant asserts that the Tribunal failed to comply with its obligations under s.425 of the Act. The applicant’s particulars complain that the Tribunal did not provide a genuine opportunity for him to give his oral evidence, that there was not a fair chance for him to present his arguments in relation to the issues relevant to his review application, and that the Tribunal Member was only “going through the motions”, and had already predetermined the outcome.
As Ms Clegg submits, I also understood the latter to be an allegation of bias.
Before the Court, the applicant’s submissions emphasised essentially what is put in the application. That is, while the applicant was invited to a hearing, the Tribunal did not give him an opportunity to address its concerns and doubts, or to provide explanations. As the Minister submits, without a transcript of the hearing before the Court, it is indeed difficult to respond to these complaints in any meaningful way. The Tribunal’s account of what occurred at the hearing remains unchallenged by any evidence to the contrary before the Court. In these circumstances, it is not open to this Court to make assumptions about what may or may not be otherwise said to have occurred at the hearing (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241).
I should just note that the applicant also complained before the Court, in explanation for the Tribunal having found inconsistencies in his evidence, that this was due to a “mistranslation” at the hearing. In this regard, I agree with Ms Clegg’s submissions that the difficulty for the applicant is that there is nothing in the material before the Court to show any difficulty in interpretation at the hearing before the Tribunal. I note, also in this regard, that the applicant was assisted before the Tribunal by an interpreter in the Mandarin language who was accredited to NAATI Level 3 (CB 65).
The short answer to the applicant’s second ground and, indeed, to this additional complaint raised at the hearing before the Court, is that if there were any difficulties such as a breach of the Tribunal’s obligation pursuant to s.425, there was clear opportunity for the applicant to have brought evidence (for example, by way of a transcript of the hearing) before the Court to support his complaint.
But, in any event, taking the particulars in turn, on what is before the Court, I cannot see that the Tribunal failed in its obligation pursuant to s.425. There is nothing before the Court to show that the hearing was “a hollow shell” (as has been described in Mahzar v Minister for Immigration & Multicultural Affairs [2002] FCA 1759 at [31]).
From what is before the Court the Tribunal’s unchallenged account reveals that the applicant was given the opportunity to set out and explain the factual account of what he said had occurred in China. The Tribunal’s questioning and the range of topics appeared relevant to the Tribunal’s task and, indeed, to the test that it was required to apply in discharging the exercise of its jurisdictional task.
The applicant’s claim that he was not given a fair chance to address the issues, in relation to the review, or the Tribunal’s doubts about what he was saying, can only be understood on the basis that whoever drafted these grounds for the applicant may perhaps have had in mind what the High Court said in this regard in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”), and the Tribunal’s procedural fairness obligations pursuant to s.425 of the Act.
The issues determinative of the application before the delegate were that the claims made by the applicant did not reveal a Convention nexus, and the rejection of the applicant’s factual claims to have managed a construction operation or business in China, in relation to which the delegate found that the applicant had not been truthful (CB 49).
The applicant would have been on notice, and should have assumed, therefore, that these same issues would be dispositive of the review, given that they were the live issues as a result of the delegate’s decision. It is the case that both of these issues were dispositive of the review by the Tribunal. But even further, the Tribunal’s account of the hearing reveals that the issue as to the truthfulness of his factual account was squarely raised with him at the hearing (see [40] of the Tribunal’s decision record), as indeed were the factors that persuaded the Tribunal in this regard.
Further, the issue of the lack of Convention nexus, and the factors that the Tribunal saw as being relevant, were also discussed. At paragraph 48 the Tribunal reported that: “… The possibility that Longhua and corrupt officials, rather than the Chinese Government, wished to harm the applicant was discussed.”
None of this assists the applicant in showing jurisdictional error.
The third element in the complaint in this ground, at best, can only be construed as the applicant asserting that the Tribunal was biased, in that it did not bring an open mind to the hearing. I understand the complaint to be that no matter what the applicant said the Tribunal was not going to be persuaded to his point of view.
Bias is a serious allegation to make. In reality, it is an attack on the personal integrity of the Tribunal Member, and therefore such allegations must be clearly made, and there must be evidence to support such serious allegations (Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [43] to [44], Minister for Immigration & Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872, Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).
The applicant’s assertions in this regard are based, it appears, on the material in the Court Book, and without any other evidence, they remain just baseless assertions.
It is indeed, as is said, a rare case where such a complaint can be made out having regard only to the Tribunal’s decision record (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 per von Doussa J at [38]).
Drawing on what are the “particulars” to ground two and, indeed, after listening to the applicant at the hearing before the Court, it must be said that it appears that the applicant has misunderstood the Tribunal’s procedural fairness obligation to put him on notice, or at least, as was said in SZBEL, to “sufficiently indicate” to him at the hearing the issues in relation to the review. The Tribunal’s discharge of this obligation in raising its concerns about the applicant’s factual claims and evidence, its attempts to ensure that the applicant understood the relevance of what was being said in the circumstances cannot be construed as bias on the part of the Tribunal.
The opportunity for the applicant to address those concerns was afforded to him at the hearing. The Tribunal is not required to do more than put the applicant on notice of the possibility that he would be perceived as not telling the truth about his experiences. I cannot see that in this regard there was any additional obligation on the Tribunal to provide any further opportunity to the applicant.
The Tribunal’s discharge of its procedural fairness obligation in raising its concerns cannot of itself be construed as bias in the circumstances without anything else put before the Court. In all, therefore, Ground two is not made out.
Ground Three
Ground three asserts that the Tribunal’s decision involved an apprehension of bias. Again, with regard to established authorities (as referred to at [40] of this Judgment and Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 157), I note that the relevant test here is whether the well informed lay observer would reasonably apprehend that the Tribunal did not bring an open mind to the proceedings.
The applicant particularises this complaint by stating that the Tribunal did not have the necessary knowledge about actual business registration or business operation in China. Even if it could be shown that the Tribunal personally did not have such knowledge in the circumstances of this case, it does not establish a reasonable apprehension of bias.
In any event, the Tribunal clearly did not make any assertion to be operating from some basis of personal knowledge in this regard. In fact, the Tribunal quite properly referred to independent country information available to it about business requirements in China. It made reference to this detailed information in its decision record and noted the source of this information. (See what is set out at [55] of the decision record.)
Further, and important in the context also of the applicant’s other grounds, the applicant was put on notice at the hearing about the existence of this information. (I refer here to [31].) The applicant was clearly given the opportunity to put any contrary view to the Tribunal.
I should also note a matter to which I have made reference earlier. It appears that both the delegate, and the Tribunal, but focusing here on the Tribunal, approached the resolution of the application before it by ultimately rejecting the credibility of the applicant’s factual account of what he said had occurred in China. That alone is sufficient, given that I cannot discern any error, to support its conclusion, in affirming the delegate’s decision (VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965).
It is well established that where a Tribunal makes a finding that is attendant with such doubt, it then must go on to consider the alternative, that is, relevant to this context, as if the claims were true (Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559).
In the current case I cannot see that the Tribunal’s finding as to the credibility of the applicant’s claims was attendant with such doubt, so as to cause the Tribunal to consider: “Even if the Tribunal were wrong in this conclusion… ” ([66]), and to consider the alternative. But, ultimately, I cannot see error in what the Tribunal has done in this regard.
I agree with Ms Clegg’s submission that when properly read and as a whole, what the Tribunal referred to as: “Even if the Tribunal were wrong …” is, in reality, an alternative line of reasoning to the reasoning which led to its adverse finding as to the credibility of the applicant’s claims. The Tribunal’s rejection of the applicant’s factual account of his claimed past experiences was sufficient to support its affirmation of the delegate’s decision.
I should just note that, when given an opportunity to respond to Ms Clegg’s submissions at the hearing before Court, the applicant made a statement that in the 1980s capital punishment would have been meted out for what he said had occurred to him in China. Again, such a statement asks this Court to make findings of fact about his claims to fear persecution. This cannot assist the applicant.
Ultimately, I agree with Ms Clegg that, in reality, the applicant seeks to challenge the Tribunal’s relevant findings of fact and the reasoning that informed those findings of fact. This is really a request for the Court to indulge in impermissible merits review.
While the applicant has a strong disagreement with what the Tribunal has done, as evident in his submissions before the Court, this is not sufficient to establish either an apprehension of bias, bias, nor does it assist in any other way with any of the other complaints that have been put before the Court, both by way of the application and submissions in support.
Conclusion
It is the case that for the applicant to succeed before the Court, at the least, I would need to discern jurisdiction error on the part of the Tribunal. I cannot discern such error by way of the grounds in the application, nor by way of the applicant’s submissions in support nor, indeed, otherwise. For this reason the application must be dismissed.
Costs Application
The Minister has made an application for costs in the amount of $4,700. First, I need to consider whether the order should be made. The applicant has said that although he is allowed to work, his earnings are insufficient to cover these costs. I do not see this as a sufficient reason not to make the order sought by the Minister. The applicant’s lack of funds is obviously a serious matter for him, but this must be balanced with the fact that he has brought the Minister to this Court, and that the Minister was required to respond to his application. In responding to the application, the Minister properly sought legal representation, and in doing so incurred legal costs.
As the successful party to these proceedings, I cannot see that the Minister should not be able to recover at least some of those costs, and I do not see the applicant’s submissions as outweighing the application by the Minister in receiving some of his costs.
As to the amount, I note that for a case of this type at the stage that it has reached, the Minister could have sought an amount of $5,865. The amount sought is well below that. I take the view that the amount which is set out in the relevant Schedule to the Rules of this Court is a good general guide as to what is reasonable.
The Minister’s application for the amount sought certainly falls well within what would generally be regarded as reasonable for a case of this type. But, quite separately, having regard to the legal work that has been done in this case in responding to the application, the amount sought, in my view, is a reasonable amount. I will make the order in the amount sought by the Minister.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 19 January 2010
0
21
1