SZOCL v Minister for Immigration
[2010] FMCA 430
•22 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOCL v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 430 |
| MIGRATION – Review of decision of Refugee Review Tribunal – no bias or apprehension of bias – findings open to Tribunal on what was before it – Tribunal made adverse credibility findings – applicant seeking impermissible merits review – information fell within exceptions – Tribunal sufficiently indicated dispositive issues – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), s.424A |
| 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 & Indigenous Affairs v SBAN [2002] FCAFC 431 VFAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; [2003] 131 FCR 102 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 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 W148 /00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Abebe v The Commonwealth (1999) 197 CLR 510 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 |
| Applicant: | SZOCL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 69 of 2010 |
| Judgment of: | Nicholls FM |
| Hearing date: | 22 June 2010 |
| Date of Last Submission: | 22 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 22 June 2010 |
REPRESENTATION
| The Applicant: | In Person |
| Appearing for the Respondents: | Ms B Rayment |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 15 January 2010 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 69 of 2010
| SZOCL |
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 today an application made on 15 January 2010 under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 16 December 2009, which affirmed the decision of 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”) who arrived in Australia on 19 April 2008. She held a Student Guardian visa. She applied for a protection visa on 29 June 2009 (see “Court Book” – “CB” - CB 1 to CB 34 with annexures). In that application the applicant was assisted by a migration agent (CB 9, CB 27 to CB 30).
Claims to Protection
The applicant’s claims to protection were set out in a statement annexed to her protection visa application (CB 31 to CB 34).
She claimed that in March 2000 she and her husband leased five acres of land from the Town Council in a village near Fuqing City in China to build a piggery. This began operation in July 2000.
The applicant claimed that in the subsequent seven years she often had to worry about unreasonable “policies” to obtain money by the Town Council. The applicant had to pay fees to the Council and she feared that if she refused the piggery would be destroyed.
Relevantly she claimed that in April 2006 the Fuqing City Government unreasonably issued a notice for demolition because of environmental pollution and illegal construction. This was done as part of the Government’s “Farming Animal Reform Plan”. The applicant said that she believed this reform was unreasonable and did not respond to the notice.
On 15 October 2007, the City Government demolished the piggery buildings without the permission of the applicant or any negotiation for compensation. This resulted in significant economic loss for the applicant and her family.
With other villagers whose land was also expropriated the applicant petitioned the Government for justice. She claimed to have been arrested for committing a “public order” offence and was held for two days and one night at the police station. There she was threatened and beaten by police. She was then taken to a Detention Centre for a week. She claimed that a government official told the applicant not to petition further, to pay a fine, and that if she did not behave following her discharge she would be sent to gaol. The applicant’s husband paid the fine and she was released.
The applicant claimed that following release she lived in fear as she did not know when she would be arrested again. She said that the government gave a “pitiful” amount of compensation for the piggery. The applicant wanted to petition again, but police went to her home and threatened her that she would be sent to gaol if she participated in a petition.
The applicant decided to leave China. Her husband found a migration agent to send their son overseas to study, and the applicant accompanied him as his guardian. The applicant stated that she feared return to China as she would be arrested and gaoled by the police.
The Delegate
The Minister’s delegate found it implausible that the Chinese authorities would offer the applicant compensation in circumstances where she was not a landowner, and indeed was acting in contravention of relevant laws. This led the delegate to question the overall credibility of the applicant’s claims (CB 48). The delegate also noted inconsistencies between the applicant’s claims and information that had otherwise been included in her protection visa application (CB 48 to CB 49). The delegate found that the applicant’s answers to questions, when interviewed about the piggery, were “unconvincingly vague” (CB 48).
While the delegate said that, if the applicant’s claims were true her arrest and detention would amount to persecution, as distinct from prosecution (CB 49), in considering whether there was a real chance that the applicant would face persecution if returned to China, the delegate noted that the applicant did not claim to have experienced any further mistreatment in China following her release from detention in October 2007.
Further, she departed China using a valid passport issued in her own name. This to the delegate, indicated that she was not of interest to the Chinese authorities at the time of her departure. In these circumstances the delegate found that there was not a real chance of the applicant suffering persecution and that the applicant’s fear was not well-founded.
The Tribunal
The applicant applied for a review by the Tribunal on 21 September 2009. She continued to be assisted by the same migration agent (CB 54). The applicant attended a hearing before the Tribunal on 11 November 2009 (CB 63).
Ultimately, the Tribunal noted that the applicant’s evidence about her claims “was inconsistent in significant respects” ([64] at CB 80, see also [65] at CB 80 to [70] at CB 82). As a result of these inconsistencies the Tribunal did not find the applicant to be a credible witness, and did not accept the relevant factual claims underpinning her claim to fear persecutory harm ([71] at CB 82).
The Tribunal found that the applicant had not been persecuted in the past in China and would not face persecution in the future ([71] at CB 82). In all therefore it concluded that the applicant did not have a well-founded fear of Convention-related persecution ([72] at CB 82). The Tribunal therefore affirmed the decision of the delegate ([74] at CB 82).
Application to the Court
In her application to the Court, the applicant has put forward the following grounds:
“(1) RRT had bias on me.
(2) RRT did not consider my risk to return to China.
(3) RRT did not give me letter to explain doubts before they refused my application.”
No further particulars were provided.
Before the Court
The applicant appeared in person before the Court. She was assisted by an interpreter in the Mandarin language. Ms B. Rayment appeared for the first respondent. I note that written submissions have been provided to the Court by the first respondent. Despite opportunity given to her as a result of orders made by a Federal Magistrate on 9 February 2010 the applicant has put nothing whatsoever before the Court to support the application that she has made.
When I explained the relevant system in Australia for dealing with persons who came to this country seeking protection, and when given the opportunity to make submissions to the Court, the applicant submitted the following:
(1)The Tribunal decision was unfair.
(2)It was difficult to obtain documents from China because the police were still looking for her. I understood this to be a reference to documents relating to her refugee claims, in particular, her claims to have been detained. The applicant asked for more time to obtain these documents from China.
(3)The applicant stated that she wanted protection. She was very scared and the police would look for her if she were to return.
It became apparent that the applicant had not read the Minister’s written submissions. This was explained because while the Minister’s submissions had been sent to the address for service provided by the applicant, the applicant had since moved but had not provided any change of address details either to the Minister’s solicitors or to the Court.
I adjourned to allow the interpreter to translate the Minister’s submissions for her. When I directed the applicant to the grounds as set out in her application, and asked if she had anything to submit in light of the Minister’s submissions, the applicant stated that:
(1)She did not understand why the Tribunal did not grant her application for refugee status; and
(2)There remained a real chance of persecution if she were to return to China.
Consideration
Ground One
Dealing first with the grounds as set out in the application. The first ground alleges bias on the part of the Tribunal. It is quite trite now to say that such claims need to be clearly made and supported by evidence such that they can be distinctly proven. (See 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 & Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; [2003] 131 FCR 102, Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).
Further it is a rare circumstance where such an allegation can be made out 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]). Yet that is all that the applicant has chosen to put before the Court. Not only has the applicant failed to take up the opportunity to put any evidence to support this allegation, no particularity was provided to support the bare assertion that the Tribunal was biased towards her.
I should say, in particular for the applicant to understand, that an allegation of bias is an extremely serious allegation to make against an administrative decision maker. That is because in Australia, an allegation of bias is not just an assertion that the Tribunal made a mistake, but it is an attack on the very integrity of the Tribunal member. It says that the Tribunal member fundamentally failed to approach the task that had been given to them by having a closed mind. This goes beyond just an attack on the Tribunal’s decision.
Nonetheless as a newcomer to this country the applicant may not have understood the seriousness of the allegation that she was making. But whatever the situation, I can only agree with the Minister’s submissions that there is nothing in the material before the Court to suggest that the Tribunal approached its task with anything other than a mind open to persuasion. Nor is there anything to suggest that it failed to bring an impartial mind to the resolution of the questions that were required to be decided. I cannot see that bias can be made out.
Nor for that matter, does the material before the Court reveal that the hypothetical well-informed lay observer would reasonably apprehend that the Tribunal did not bring an open mind to the issues for consideration and decision and was not open to persuasion irrespective of the evidence and arguments. Therefore, even if the applicant, in asserting bias also seeks to assert an apprehension of bias, this would clearly also fail.
Ground one, therefore, is clearly not made out.
Ground Two
In ground two, the applicant asserts that the Tribunal did not consider the risk to her if she were to return to China. What is revealed on any plain reading of its decision record, is that the Tribunal set out its understanding of the relevant law in the usual unexceptional terms. Far more importantly any plain reading of its decision record reveals that it well understood the critical question it was jurisdictionally charged to answer. Namely whether the applicant had a well-founded fear of persecution for a Refugees Convention reason if she were to return to China. This clearly involved an assessment of the chance of risk of future harm. What is plain is that the Tribunal not only posed this question but answered it.
What sits at the heart of the applicant’s claimed failure to understand the Tribunal decision, a complaint that she repeated before the Court today, is that the Tribunal found the applicant not to be a credible witness. Given that she continues even after having had read to her the Minister’s submissions to press that she did not understand why the Tribunal did not grant her refugee status, it is necessary to emphasise for the applicant’s benefit that in effect the Tribunal found that she had lied. That is the answer to the applicant’s question before the Court. If she requires further understanding of the reason as to why the Tribunal did not grant her the application that she sought, then, with respect to her, I cannot express it in any clearer terms.
This finding as to the applicant’s credibility was a finding of fact that was based on a number of other findings of fact that informed it. These were findings that were open for the Tribunal to make. As McHugh J said in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1, it is quite clear that findings of fact, which include findings as to the applicant’s credibility are for the Tribunal to make. Essentially, to assist the applicant in her understanding, the Tribunal found her evidence to be inconsistent in critical ways and it rejected her explanations for these inconsistencies (Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 at 558 to 559, W148 /00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64] to [69] per Tamberlin and Nicholson JJ).
What this meant was that the Tribunal rejected the applicant’s factual account of what she had said had relevantly occurred in China. That is, what had occurred in the past. It found that this undermined her claim to fear persecutory harm if she were to return in the future. The basis for refusing the applicant’s claim to fear harm in the future was clearly its rejection of the factual claims to have feared harm in the past. This is quite clear with reference to [71] of the Tribunal’s decision record.
To the extent that this ground may be seen as a request for the Court to engage in impermissible merits review, I note relevant authorities that do not permit the Court to engage in such review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”) at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (citing Attorney-General (NSW) v Quin (1990) 170 CLR 1 (“Quin”) at 35-36 per Brennan J and at 291 per Kirby J) and Abebe v The Commonwealth (1999) 197 CLR 510 at [195] per Gummow and Hayne JJ).
Without anything further this ground cannot be made out.
Ground Three
In ground three of the application the applicant alleges that the Tribunal failed to provide her with a letter explaining its doubts before it made its decision to refuse the application.
When regard is had to the relevant statutory regime the Tribunal’s obligation to provide an opportunity for an applicant to comment is an opportunity for an applicant to comment on “information” (Division 4 of Part 7 of the Act). This obligation arises as a result of s.424A of the Act. This section is part of Division 4, which is the exhaustive statement, absent bias, of the natural justice hearing rule. That is, whatever obligations the Tribunal had to provide the opportunity that the applicant seeks, or rather the applicant now says that should have been provided to her, arises and is contained in that part of the Act.
In the current case the information which the applicant asserts should have been put to her in a letter related to the Tribunal’s doubts surrounding her claims and evidence and in context as they related to her credibility. But as the High Court held in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 (at [18]), “information” for the purposes of s.424A does not include the Tribunal’s findings as to inconsistencies contained in what was put before it. Nor does it extend to doubts about the applicant’s evidence and claims. In this regard therefore, the Tribunal is not required to provide the applicant with a draft of its decision record before proceeding to a decision.
But even if this were not the case any evidence and submissions given by the applicant to the Tribunal for the purpose of the review falls within the exception to the obligation under s.424A(1) which is contained in s.424A(3)(b). Further, the written information that the applicant provided to the Minister’s department with her application for a protection visa falls within the exception contained in s.424A(3)(ba).
But even further, I note that the only evidence before the Court of what occurred at the Tribunal hearing is that contained in the Tribunal’s own decision record. No further evidence has been put before the Court by the applicant to challenge that account. This decision record reveals that the Tribunal’s doubts were discussed at the hearing with the applicant. There is more than sufficient basis to draw an inference that there was, during the course of the hearing, information that, at least at that time, the Tribunal considered would be the reason or part of the reason for affirming the decision under review. Whatever the nature of this information, it was raised with the applicant (see in particular [35] to [39], [45] to [48] and [50] to [53] of the decision record).
In this regard I also note that in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, the High Court set out the Tribunal’s procedural fairness obligations arising from s.425 of the Act. The Tribunal is required to expose at the hearing those issues which were not dispositive before the delegate, but were dispositive and determinative before it.
As I said earlier, the issue of the credibility of the applicant’s factual account on which she based her fear of persecutory harm was a live issue as a result of the delegate’s decision. As I have stressed, it was this issue that was determinative before the Tribunal. But, in any event, the Tribunal clearly put its concerns about the applicant’s credibility to her at the hearing. Again, I note, in particular, [34] to [39], [46] to [48] and [51] to [53] of the decision record. It is also clear that the Tribunal squarely put to the applicant that the inconsistencies between her oral evidence to it and her written statement raised doubts about the truth of her claims. This is clear with reference to [54] and as set out at [55] to [61], the Tribunal specifically raised these matters again and gave the applicant the opportunity to comment.
It must be said that, given the Tribunal’s unchallenged account of the hearing it is difficult to accept that the applicant would have gone away from the hearing without being aware that her credibility was squarely at issue.
Ground three, therefore, is not made out.
Other Considerations
As I said earlier, before the Court the applicant made a number of submissions. The first was that the Tribunal decision was “unfair”. As has been said in a number of authorities (see Quin) in relation to a decision by an administrative decision-maker the focus is not on whether the outcome is unfair, but whether there was any unfairness in the process. For the reasons that I have already referred to, I cannot see that the Tribunal failed in its procedural fairness obligations to the applicant.
What remains therefore is that the applicant’s complaint that the decision was unfair does not rise above a challenge to the Tribunal’s conclusion and at very best, can only be seen as a request for this Court to substitute its own findings for that of the Tribunal. This the Court cannot do (Wu Shan Liang).
Second, the applicant raised that it was difficult to obtain documents from China because the police were looking for her. When I sought to confirm with the applicant whether she had raised with the Tribunal, or made a request to the Tribunal, for more time to provide further documents the applicant claimed that she had made such a request but was unable to provide any evidence to support that assertion before the Court. Nor can I see anything in the material before the Court that would support the applicant’s assertion. In fact, if regard is had to [62] of the Tribunal’s unchallenged account of what occurred at the hearing, what is revealed is that the Tribunal reports as follows:
“… Asked if she had any other evidence or arguments to present the applicant said she did not.” (CB80.5)
To the extent that the applicant’s statement was a request that this Court provide her with more time to obtain further documents from China, as I explained to the applicant, even if she obtained documents to show for example that she had been detained by the police, the time has now well and truly passed where any such documents would be of assistance to her. That time was before the Tribunal. Any such documents, even if the Court were to believe that the applicant had been detained, could not assist the applicant in revealing legal error on the part of the Tribunal.
As for the remainder, the applicant’s assertions that there was a real chance of persecution on her return to China, and that she was scared of police if she were to return, again do nothing more than seek merits review from this Court. As I have repeatedly attempted to explain to the applicant this Court cannot engage in such an exercise.
Conclusion
In all therefore for the applicant to succeed before the Court today, at the very least the Court would need to discern jurisdictional error on the part of the Tribunal. I cannot discern such an error on what has been put before the Court. For this reason the application must be dismissed.
Costs
In my view, it is appropriate that an order for costs be made in the normal course. As is often said, costs follow the event. Despite opportunity today the applicant has put nothing before the Court to argue against the making of such an order, and nor can I otherwise see that there is anything that would argue against the making of the order. So I will make an order for costs.
As to the amount I note that the amount sought is well below the amount that the Minister could have requested, having regard to the relevant Schedule to the Federal Magistrates Court Rules 2001 (Cth). But, quite separately, I am satisfied on what is before the Court, and having regard to the work that has been done by the Minister’s solicitors, that the amount sought is a reasonable amount in all the circumstances. I will therefore make the order in the amount sought by the Minister today.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: D Nestor
Date: 14 July 2010