SZOCC v Minister for Immigration

[2010] FMCA 282

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOCC v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 282

MIGRATION – Refugee Review Tribunal – Tribunal complied with s.425 obligations – Tribunal complied with s.424A – information fell within s.424A exceptions – no bias or apprehension of bias – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.430, 424, 424A, 424AA, 425

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Minister for Immigration & Ethnic Affairs v Wu Shan Liang  & Ors [1996] HCA 6; (1996) 185 CLR 259
SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46
SZMMP v Minister for Immigration & Citizenship [2009] FCA 233
Minister for Immigration and CitizenshipvSZKTI [2009] HCA 30; (2009) 238 CLR 489
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 157; [2001] HCA 17
SZHPD v Minister for Immigration & Citizenship [2007] FCA 157
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361
Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Re Minister for Immigration & Multicultural Affairs; ex parte Epeabaka [2001] HCA 23; (2001) 179 ALR 296
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407

Applicant: SZOCC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 14 of 2010

Judgment of: Nicholls FM

Hearing date: 22 April 2010

Date of Last Submission: 22 April 2010

Delivered at: Sydney

Delivered on: 22 April 2010

REPRESENTATION

The Applicant: In person

Appearing for the Respondents: Mr G Johnson

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application made on 5 January 2010 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $3,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 14 of 2010

SZOCC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. This is an application made on 5 January 2010 under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 10 December 2009, which affirmed the decision of the delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. The applicant is a national of the People’s Republic of China (“China”), who arrived in Australia on 24 April 2009, using a passport that was not in his real name. He applied for a protection visa on 22 May 2009 (Court Book – “CB”, CB 1 to CB 29, and with attachments to CB 48). The applicant was assisted by a migration agent in the making of this application (Priscilla Yu of Priscilla International Co. – CB 9, CB 26 to 29).

Claims to Protection

1. The applicant’s claims to protection were set out in his application for a protection visa (CB 17 to CB 20).

2. The applicant was a carpenter in China. The mother of his assistant ran a street stall. She was “always bullied” by officials from the “City Control” (a part of the local municipal council), and was forced to pay them money. However, sometime in 2008 she was unable to pay them sufficient money. On 20 October 2008 the stall was confiscated, and she was beaten. The applicant’s assistant went to the City Control headquarters to seek an investigation and compensation, but was detained by the Public Security Bureau (“PSB”) for inciting an anti-government movement.

3. The applicant claimed that he bribed PSB and City Control officials to “save” his assistant, who was eventually released more than a month after his detention, on 31 November 2008. However, on 6 December 2008 he died as a result of injuries to his internal organs.

4. The applicant claimed that on 16 December 2008 he organised nearly 100 people to protest at the PSB headquarters. Police suppressed the protest and the applicant was arrested because he was a major organiser of the protest. He was detained and subjected to “persecution” until 20 February 2009 when he was released as a result of a serious illness.

5. Following his release the applicant continued to be harassed by the police, and had to report to the PSB weekly. He obtained a false passport, and was able to leave China. Since his departure, his family have continued to be troubled by police.

The Delegate

1. The delegate had doubts about the applicant’s credibility in light of contradictory information provided in the application and at the interview before the delegate, and in light of relevant independent country information (CB 69 to CB 71). The delegate found that the applicant’s account of relevant events in China provided: “… sparse, vague details …”, and that he required continuous prompting (CB 71.6).

2. Ultimately, the delegate was not satisfied that the applicant had organised the protest, or had a genuine fear of persecution in China.

The Tribunal

1. The applicant applied to the Tribunal for review of the delegate’s decision on 4 September 2009. He continued to be represented by the same migration agent (CB 75). He was invited to, and ultimately did, attend a hearing on 26 October 2009 (CB 82 and CB 87).

2. The only account of the Tribunal hearing before the Court is that contained in the Tribunal’s decision record. It indicates that at the hearing the Tribunal invited the applicant to expand on his claims and provide details in particular as to the circumstances of his former employees death, the applicant’s claimed role and actions in relation to the subsequent protest, the reason for the protest, whether it was targeting the City Control or the PSB, the applicant’s role in the preparation and distribution of protest pamphlets and posters, and details of the applicant’s claimed detention and subsequent release ([32] at CB 101 to [50] at CB 105).

3. The applicant has not put any transcript of the Tribunal hearing before the Court to challenge the Tribunal’s own account of what occurred. A plain reading of this account reveals that the applicant’s evidence at the hearing, when also seen in light of his written application and what he reportedly told the delegate at the interview, provided a clear basis for the Tribunal to have significant concerns about the truth of the applicant’s claims.

4. These concerns were put to the applicant at the hearing ([51] and following at CB 105 to CB 107). It is not clear whether the Tribunal was seeking to raise matters relevant to what turned out to be the determinative issues in the review, that is with s.425 and SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”) in mind, or whether it sought to discharge some perceived obligation pursuant to s.424A(1) in putting “information” to the applicant that it considered would be the reason, or a part of the reason, for affirming the delegate’s decision.

5. At [51] of the decision record the Tribunal used language relevant and evocative of the latter. Its reference to whether the applicant wished to comment at the hearing or wanted more time to comment, and its willingness to consider an adjournment for this purpose, appears also to evoke s.424AA.

6. Whatever the case, and it may be the Tribunal was seeking to discharge both obligations, the Tribunal squarely put to the applicant its concerns about: “significant inconsistencies in his evidence.” These inconsistencies were said to arise from what he had said in his original application, what he told the delegate, and from the evidence he gave at the hearing. In some instances, his evidence at the hearing was itself internally inconsistent.

7. The Tribunal saw that these inconsistencies ranged across the entire factual account of what the applicant claimed to have relevantly occurred in China. This is evident when what is subsequently said to have been put to the applicant at [52] to [57] of the decision record (CB 106 to CB 107) is seen in light of what had previously been discussed at the hearing.

8. The Tribunal reports that it explained the relevance to the review of these matters because: “… it went to whether I believed he was telling the truth about his reasons for leaving China”. The Tribunal invited the applicant’s comments ([58] at CB 107).

9. The Tribunal also raised with the applicant information contained in, and relevant to, a previous application that he had made for a visa to visit Australia in 2007, and the inconsistencies between some of this information and some aspects of the factual account that the applicant had given to the Tribunal ([59] to [60] at CB 107).

10. The Tribunal reports that it told the applicant that this information was relevant because it cast doubt on whether he had told the truth in relation to his application for a protection visa. The Tribunal put to the applicant that having failed in his attempt to obtain a visitor visa in his own name, the applicant “resorted” to buying a passport in another name with an Australian visa in it. The Tribunal told the applicant that this suggested there was no truth in his claimed involvement in an anti-government protest. The Tribunal invited comment and the applicant responded ([61] at CB 108).

11. The applicant is reported as not having sought further time to make any further comment ([62] at CB 108).

12. The Tribunal found that there were good reasons for concluding that the applicant was not telling the truth in his factual claims made in support of the protection visa application ([66] at CB 109). This arose from the number of inconsistencies in the account given by the applicant in his protection visa application and at interview with the delegate and at the hearing before the Tribunal ([66] at CB 109 to [74] at CB 110). The Tribunal found that there were: “… too many other inconsistencies in his account for me to accept that he is telling the truth” ([75] at CB 111).

13. Additionally, the Tribunal found it relevant that the applicant had previously applied for a visa to visit Australia (in 2007), in which it was claimed that he was the General Manager of Fuzhou Jasmine Entertaining Company. The Tribunal considered that this suggested that the applicant was prepared to lie in order to obtain a visa, which had significance as to whether or not the Tribunal believed the applicant’s current claims ([76] at CB 111).

14. Ultimately, the Tribunal determined that the applicant was not a witness of truth ([77] at CB 111).

15. In light of the inconsistencies in the applicant’s evidence, and the findings as to the applicant’s credibility, the Tribunal did not accept the factual claims made by the applicant ([78] at CB 111).

16. In all, therefore, the Tribunal found that the applicant did not have a well founded fear of persecution for any Convention related reason, and affirmed the delegate’s decision.

Application to the Court

1. The application to the Court of 5 January 2010 was made on the following grounds:

   “1. The Tribunal failed to comply with its obligations under s.424A(1) of the Act.

   …

   2. The Tribunal failed to consider my evidences thoroughly, fairly and properly; and the Tribunal’s finding has included a reasonable apprehension of bias.”

[Particulars omitted.]

Before the Court

1. At the hearing before the Court the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. Mr G Johnson appeared for the first respondent. Written submissions were filed on behalf of the Minister, and leave was granted for the affidavit of Ms Katherine Nicole Hooper, made on 12 March 2010, to be read into evidence before the Court.

2. The relevance of Ms Hooper’s evidence to the matter before the Court is the addition to the relevant documents contained in the Court Book of a file note relevant to a conversation in connection with the applicant’s application for a visitor visa in 2007, which was said to have taken place between an officer of the Minister’s department and the applicant or his agent in China. The Tribunal referred to this matter both at [59] and [77] of its decision record.

3. When given the opportunity, the applicant submitted that he did not want to return to China because he would be persecuted if he were to return. As I explained to the applicant, given the role, function, and jurisdiction of the Court, as compared to that of the Tribunal, such an assertion on its own is not an assertion of legal error on the part of the Tribunal, but more properly is a matter that lies within the province of the Tribunal. An attempt to raise an argument of that sort before this Court can only be seen as an attempt to invite this Court to engage in impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259).

4. The applicant also complained that the Tribunal Member thought that he had given inconsistent information and evidence. That is, as between the interview before the delegate and the hearing before the Tribunal. But that the Tribunal did not give him “detailed” information about these inconsistencies, and the Tribunal did not let him understand the differences in his evidence.

5. As Mr Johnson, in my view correctly, submitted, this can only be seen as a further elaboration of what is complained about in Ground One, and I will deal generally with this complaint in the context of dealing with ground one.

Consideration

Ground One

1. The first ground asserts a breach of s.424A(1) of the Act. The “information” which the applicant argues should have been put to him in writing related to the inconsistencies in his oral evidence given to both the delegate and the Tribunal and the written material provided by the applicant, as well as information regarding a previous visitor visa application that he had made.

2. The short answer to this ground is that “information” for the purposes of s.424A(1) does not include inconsistencies in the applicant’s evidence or claims, nor indeed doubts or adverse views held by the Tribunal about the applicant’s evidence and claims (SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [18] – “SZBYR”).

3. Further, and in any event, information given by the applicant to the Tribunal for the purpose of the review, which involves the evidence that he gave to the Tribunal, falls within the exception contained in s.424A(3)(b) to the obligation in s.424A(1). The written information provided by the applicant to the Minister’s department in his application falls within the exception contained in s.424A(3)(ba).

4. Regardless of these exceptions, the Tribunal proceeded to put what it described as “information” to the applicant at the hearing. (See [35] at CB 102 to [57] at CB 107, [59] to [60] at CB 107, and particularly [58] at CB 107 and [61] to [62] at CB 108.)

5. The Tribunal’s account of the hearing, which remains unchallenged by any evidence to the contrary, reveals that at the hearing the Tribunal gave the applicant certain information that it considered might form part of the reason for concluding that the applicant was not owed protection in Australia under the Refugees Convention (at [61]). This clearly invoked any of the Tribunal’s obligations pursuant to s.424A(1). In that context, the Tribunal clearly employed the facility available under s.424AA to put such information orally to the applicant at the hearing.

6. On what is before the Court, I am satisfied that the Tribunal complied with its obligations set out in s.424AA. Having outlined the particulars as to the relevance of the information, the Tribunal invited the applicant to comment on or respond to them ([61]). The applicant was notified that he was entitled to seek additional time in which to do so ([62]). As a result, even if any obligation under s.424A(1) could be said to have been invoked, because of s.424A(2A) the Tribunal was not obliged to give this information to the applicant in writing pursuant to s.424A(1). (See SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46 at [90], SZMMP v Minister for Immigration & Citizenship [2009] FCA 233 at [51].)

7. This is similarly the case with the information given by the applicant orally to the delegate at the interview. While this information does not fall within any of the exceptions contained in s.424A(3), in the circumstances of the hearing, the use of s.424AA without error, and the existence of s.424A(2A) means the Tribunal complied with any s.424A(1) obligation.

8. Mr Johnson submitted that the Minister’s position is that the Tribunal was not obliged by s.424A(1) to put inconsistencies to the applicant. That is clear, bearing in mind what the High Court said in SZBYR. But, as Mr Johnson also submitted, even if the Tribunal then proceeded, in an abundance of caution or procedural fairness, to put such inconsistencies to the applicant, then no error is revealed in these circumstances. I agree with this submission.

9. The applicant’s complaint before the Court was that the Tribunal did not give him detailed information about the inconsistencies, and did not let him understand differences in his evidence. Whether this is seen as a complaint of some failure on the part of the Tribunal pursuant to s.424A(1)(b) or s.424AA(b), or even a failure of procedural fairness under s.425, in the sense that the Tribunal did not provide the applicant with a meaningful opportunity to engage in the hearing, any such complaint, on what is before the Court, cannot succeed and must be rejected.

10. The Tribunal’s unchallenged account, which, as I have said, is the only evidence before the Court of what occurred at the hearing, allows for a very clear inference to be drawn. The applicant was put on clear notice of each of the particular inconsistencies on which the Tribunal relied. Further, the Tribunal made clear efforts to comply with any obligation on it to ensure that the applicant understood the relevance of what was being put to him.

11. In terms of s.424A(1)(b) and s.424AA(b), if and when the Tribunal’s obligation was engaged in this regard, the obligation arising from the relevant sub-paragraph (b) is to ensure that as far as is reasonably practicable the applicant understands why the information is relevant to the review. On what is before the Court, the Tribunal discharged this obligation.

12. For the applicant’s benefit I note that this does not compel the Tribunal to continue to make sure that an applicant actually does understand in circumstances where an applicant refuses to accept any such understanding. But only to ensure as far as is “reasonably practicable” that the applicant understands. Ultimately, there is some obligation on the applicant not to assert a lack of understanding simply to frustrate the process before the Tribunal.

13. Nor, for the sake of completeness, can I see any failure of procedural fairness pursuant to s.425. The applicant was invited to a hearing. There is no evidence before the Court to suggest that there was any impediment to his giving evidence. Ultimately, with SZBEL in mind, there was one determinative issue in this review. That was the Tribunal’s comprehensive rejection of the factual substratum to the applicant’s claim to fear persecution in China. That rejection arose from the Tribunal’s clearly explained concerns about the applicant’s credibility. I note that was the issue that was also determinative before the delegate.

14. On what is before the Court I cannot see that the applicant would have been in any reasonable sense, or on any reasonable basis, left in doubt that the Tribunal had concerns with his evidence and his claims.

15. I also note reference in the particulars to Ground One to s.424. To the extent that this may be said to be some complaint of a breach of s.424 by the Tribunal then, as Mr Johnson submitted in written submissions, there is nothing before the Court to suggest that the Tribunal acted to engage the discretionary power available under s.424 to obtain information. Nor, plainly, is there any evidence to suggest that the Tribunal issued any formal request for information pursuant to s.424(2). (See Minister for Immigration and Citizenship v SZKTI [2009] HCA 30; (2009) 238 CLR 489.)

1. Ground one is not made out.

Ground Two

1. Ground two asserts a failure by the Tribunal to consider his evidence “thoroughly, fairly and properly”, and alleges an apprehension of bias on the part of the Tribunal.

2. In the particulars, the applicant asserts that the Tribunal did not take into account the difficulties he faced. That is, the disadvantage of being in what is described as an “alien environment”. The applicant explains by way of particulars that the Tribunal should have understood that given his experiences in China and his fear of the Chinese authorities, it was not “unusual” that there were inconsistencies in his evidence. The Tribunal’s failure take this into account is then said to be the basis upon which the applicant relies to explain this complaint.

3. First, I note that there is nothing in the material before the Tribunal to suggest that the applicant presented with any disability or difficulty or needs beyond that presented by any other person from overseas with a non-English speaking background, or even a Chinese ethnic background, who is unfamiliar with relevant administrative and legal processes.

4. Second, in this regard it is important to note that the applicant was represented by a migration agent not just before the Tribunal, but previously before the Minister’s department. There is nothing in the material before the Court to show that the applicant, with the assistance of his agent, or even the agent acting on her own initiative, put another particular difficulty or need of this type to the Tribunal of consideration in the applicant’s case.

5. Nor, it must be said, is there anything in the material before the Court to show that the Tribunal ignored any of the applicant’s evidence. Although I note that the Tribunal is not obliged by s.430 to refer to every piece of evidence before it. I should just note, particularly for the applicant’s benefit, that there is a clear difference between ignoring evidence and not accepting the truth of the evidence that an applicant puts before the Tribunal. On what is before the Court, I cannot see that the first part of the applicant’s complaint, that the Tribunal failed to consider his evidence thoroughly, fairly and properly, can be made out. The Tribunal’s rejection of the credibility of the applicant’s claims and evidence was based on findings that were open to it and for which it gave cogent reasons.

6. The test for apprehended bias, and for that matter the test for bias, is well established in a number of High Court and Federal Court authorities. (I refer to such High Court authorities as Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 and Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 157; [2001] HCA 17. See also SZHPD v Minister for Immigration & Citizenship [2007] FCA 157, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361, Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102).

7. It is important to note that the applicant has not put any transcript of the hearing or any other evidence before the Court to support this charge. He relies on the Tribunal’s own decision record to make out this very serious complaint.

8. As has often been said, it is very difficult for such a claim to be made out simply with reference only to the Tribunal’s decision record (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 per von Doussa J at [38]). There is a very good reason for this. A claim of bias, or a charge of an apprehension of bias, is a serious matter because, unlike many other complaints about administrative decisions, it is a complaint that brings into question the very integrity of the Tribunal. Such a complaint is personal to the Tribunal, and should not be lightly made. It is personal also because what sits at the heart of the complaint is the state of mind of the Tribunal. That is, in the case of bias, that the Tribunal did not bring an open mind (or had a closed mind) to the proceedings. In the case of the apprehension of bias, that a well informed lay observer might reasonably apprehend that the Tribunal did not bring an open or impartial mind to the conduct of the review.

9. If all that the applicant can rely on is the Tribunal’s own decision record, then I can only say that there is nothing in this account of the hearing, or even in the reasoning of the Tribunal, to indicate, let alone establish, that this hypothetical well informed lay observer might reasonably apprehend bias on the part of the Tribunal. Nor indeed, for that matter, does it indicate bias.

10. The applicant should understand that the Tribunal’s challenge to his evidence, even if some of its questioning were to be seen as vigorous, on its own does not fall within the ambit of the apprehension of bias (Re Minister for Immigration & Multicultural Affairs; ex parte Epeabaka [2001] HCA 23; (2001) 179 ALR 296 per Kirby J).

11. On what is before the Court, the Tribunal engaged in a comprehensive assessment of the applicant’s evidence and claims. Its conduct, to the extent that its conduct can be revealed through the decision record, does not reveal a mind partial or predisposed to a particular outcome. The Tribunal’s findings of fact, including its findings as to the applicant’s credibility, were all within the proper exercise of its jurisdiction, and were reasonably open to it on what was before it (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 per McHugh J). The Tribunal gave cogent and articulate reasons.

12. In all, the applicant’s grievance with the outcome cannot not be properly expressed or explained, and should not be properly expressed or explained, on the basis that an apprehension of bias exists. When properly understood, the applicant’s claim really is an attempt for the Court to engage in impermissible merits review. I note and agree here with the Minister’s submissions that it is “trite” law that a Court undertaking judicial review cannot review the merits of the decision (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

13. Ground two, therefore, does not succeed.

Conclusion

1. The applicant has put nothing else before the Court that would reveal legal error on the part of the Tribunal. Nor can I otherwise discern jurisdictional error on what is before the Court.

2. For the applicant to succeed, the Court would need to discern jurisdictional error (at least) on the part of the Tribunal. As no such error is apparent, I will proceed to make an order that the application to the Court be dismissed.

Costs

1. It is appropriate that a costs order be made in this matter. The applicant has exercised his right to come to this Court. But as with the exercise of rights, there are often consequences. In this circumstance, being unsuccessful, the Minister has sought to exercise the opportunity that is available to him as the successful party to seek to recover at least some of the legal costs that have been incurred in responding to the application. The applicant has said to the Court that he has, in effect, insufficient funds, but in my view that is not a sufficient reason such that the costs order should not be made. Nor, ultimately, is there anything else before the Court to argue against the making of a costs order in the usual way. I will make that order.

2. As to the amount, I am mindful of what is set out in the relevant Schedule to the Rules of this Court, which I regard as a useful guide as to what may be considered reasonable in cases of this type. But having regard to the actual work that has been done in this case by the Minister’s solicitors I am satisfied in all the circumstances that the amount sought is a reasonable amount, and will make the order set in that amount.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date:  16 June 2010