SZODY v Minister for Immigration

[2010] FMCA 471

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZODY v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 471

MIGRATION – Review of RRT decision – applicant a citizen of China –whether Tribunal wrongly rejected evidence of applicant’s sister on the basis of their relationship – whether Tribunal failed to properly consider documentary evidence – whether Tribunal failed to comply with s.424A or s.425 – where applicant claimed that Tribunal’s questioning and interpreter’s translation left him confused – where no transcript produced – allegation of apprehended bias not particularised.

Migration Act 1958 (Cth), s.424A

SZBEL v Minister for Immigration (2006) 228 CLR 152
SZBYR v Ministerfor Immigration (2007) 235 ALR 609
VAF v Ministerfor Immigration (2004) 206 ALR 471
WALN v Minister for Immigration [2006] FCAFC 131
Perera v Ministerfor Immigration (1999) 92 FCR 6
SZMDS v Minister for Immigration [2010] HCA 16
SCAA v Ministerfor Immigration [2002] FCA 668
Ling v Ministerfor Immigration [2004] FCA 1069

Applicant: SZODY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 297 of 2010

Judgment of: Raphael FM

Hearing date: 28 June 2010

Date of Last Submission: 28 June 2010

Delivered at: Sydney

Delivered on: 28 June 2010

REPRESENTATION

For the Applicant: In person

Solicitors for the First Respondent: DLA Phillips Fox

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $3,900.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 297 of 2010

SZODY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China who arrived in Australia on 8 December 2008, utilising a passport that he accepts was not his own.  On 20 January 2009 he applied to the Department of Immigration & Citizenship for a protection (Class XA) visa.  On 20 March 2009 a delegate of the Minister refused to grant a protection visa and, on 17 April 2009, the applicant applied for review of that decision from the Refugee Review Tribunal.  The applicant was invited to and did attend a hearing before the Tribunal, who on 27 January 2010 determined to affirm the decision not to grant the protection visa and handed that decision down on 28 January 2010.

2. The applicant’s history is accurately paraphrased by the Tribunal at [56] of its Findings and Reasons:

   “Essentially the applicant claims that he left China and cannot return there because he fears he will be persecuted by Chinese authorities because he helped underground Christians who wanted to hide from the Chinese authorities and escape persecution in China.  He claims that those he helped were later caught and arrested and they gave his name to authorities.  He claims that he was in hiding in China because he feared persecution there for assisting the underground Christians and that he knew underground Christians were persecuted because he saw how they were treated when he was involved in a special mission guarding a prison in China during his military service. He claims that he had to leave China and to travel to Australia using a passport and visa for Australia in another name because was/is on an alert list in China.  He claims that his parents and sister and his boss have been summonsed and questioned about him in China and they are otherwise having difficulties from authorities because of him.  The applicant also claims that he was still in the Army Reserve when he was in China and he did something against the law by helping the underground Christians escape and hide from Chinese authorities. The applicant also told the Tribunal he is a Christian, and became a Christian in Australia;  he said that his family is a mainstream Christian family in China, and that he did not say he was a Christian in his application for a visa as he was not yet involved.”

3. The Tribunal questioned the applicant about his claims.  The applicant told it that the person who organised for his escape from China to Australia was a fellow army recruit who he had saved from a fall during their national service and who consequently owed his life to the applicant and would help him.  This man had joined the PSB and he was able to tell the applicant that his continued residence in that country was dangerous.  The Tribunal questioned the applicant about the alleged summonses that were presented to his parents requiring them to attend before the PSB.  Although the documents which he produced to support this are dated 13 October 2008, this was before the applicant had left China.  Notwithstanding this, the applicant was not able to produce the documents until shortly before the Tribunal hearing.

4. The Tribunal questioned the applicant about his communications with his sister, who had come to Australia two years prior as a student.  The Tribunal was concerned that the applicant’s responses to these questions would seem to indicate that the applicant had not contacted his sister for some time after his arrival.  The applicant told the Tribunal that, when he first arrived in Australia, he didn’t know where he was or what to do but that he had been met by a kind Chinese woman at the airport who took him out of the airport and asked a Chinese taxi driver to take him to where other Chinese were.

5. The Tribunal questioned the applicant about some discharge papers that he had received from the army, and about his story that he helped the three friends by rowing them out to an island and supporting them for a month or so whilst they were there in July 2008, then rowing them back and sending them on their way to Hunan province.  The Tribunal was particularly concerned at the applicant’s answers to questions as to how he became aware that these three people had informed upon him, and why he was in danger.  The Tribunal adjourned the first hearing so that the applicant could bring his sister as a witness to the second hearing, which he did.  The Tribunal questioned the sister about her knowledge of the applicant’s activities and about their association after he arrived in Australia.  It asked the sister about her communications with their parents.

6. The Tribunal came to the view that it was unable to accept that the applicant had been or would be persecuted in China for the reasons that he claimed.  It considered that he gave confused and untruthful evidence about what he claims occurred on 10 October 2008, noting that on one hand he said that he went into hiding because he had been informed suddenly by his friend in the PSB that the three people he had helped had been arrested and that they confessed that he had offered to help them, but that he had also told the Tribunal that he only guessed that the people had told authorities about him because of his knowledge of what might happen to people who were being questioned.

7. The Tribunal considered that the applicant gave untruthful and confused evidence about whether he knew his sister was in Australia.  The Tribunal expressed concern about the applicant’s statement that he came to Australia on 8 December on a false passport and visa but did not make any application for a protection visa until 20 January, after talking to various different agents about it.  The Tribunal thought that that undermined his claim that he left the country and did not want to return there because he feared harm.

8. In the Tribunal’s view, if the applicant had used a false passport and visa to enter Australia for the reasons he claimed, and entered Australia illegally because he had no option as he feared he would be beaten and locked up for years in China as he claimed, he would have told the Australian authorities about that fear much earlier than he did.  The Tribunal did not accept his excuses for not doing so, that he was a stranger in a strange land.  The Tribunal did not accept that the applicant was on the alert list, nor did it accept the story about the kind Chinese woman who guided him away from the airport.

9. In regard to the applicant’s sister, the Tribunal felt:

   “[She] is not a credible or reliable witness.  In the Tribunal’s view she had an interest in the outcome of proceedings as she is the applicant’s sister, and also that the applicant told the Tribunal that his sister remains in Australia illegally so that she can work and earn money, having stopped studying in Australia;  in the Tribunal’s view these matters undermine her general credibility as a witness in these proceedings.  The Tribunal finds that her evidence does not assist the applicant in relation to the claims he is making about being persecuted in China.” [66] [CB 125]

10. Having made these findings about the applicant’s credibility, it followed that the Tribunal could not accept his claims that he had a well-founded fear of persecution as a result of activities assisting his Christian friends.  The Tribunal did accept that the applicant himself was a Christian, but as he did not claim that he would practice as a Christian or an underground Christian in China, or claim that he would desist from practicing as such because of his fear of harm, there was no evidence before it that his becoming a Christian in Australia would give rise to a well-founded fear of persecution in China.

11. On 16 February 2010, the applicant filed an application for review of the Tribunal’s decision in this Court.  He gave four grounds for arguing that the Tribunal had fallen into jurisdictional error in the manner in which it reached its decision.  First, he said:

    “The Tribunal committed jurisdictional error of law by failing to take genuine attempt to consider my evidence properly and fairly.  The Tribunal’s decision has included a reasonable apprehension of bias.”

12. The applicant gives six particulars of this claim, but they are effectively an attempt to argue the merits of his claim with this Court.  They are an explanation and a reiteration of his evidence.  This Court is unable to assist the applicant by providing him with a merits review of a Tribunal decision.

13. In the fifth particular, the applicant notes that the Tribunal rejected his sister’s evidence because of bias, saying that she had an interest in the outcome of the proceedings.  He argues that, whilst his sister did have an interest in the outcome of the proceedings, this was not sufficient evidence that she was not a credible or reliable witness.  The Tribunal’s reason for rejecting the sister’s evidence was not only that she was his sister and had an interest but also that she had determined to remain in Australia illegally.  These two facts undermined her credibility. Moreover, the Tribunal found that the sister’s evidence did not assist the applicant in relation to his claims about being persecuted, and, having considered what her evidence was, this is understandable.  The sister was not in China when these events occurred.  Anything she might have learnt about the applicant and his activities in China would have been learnt from him or other persons, such as her parents.  There is no indication that she had any direct evidence of any of these matters.  That is really why her evidence does not assist. 

    The applicant also complains that the Tribunal failed to consider his documentary evidence properly and fairly.  I cannot accept this; there is considerable discussion about the documentary evidence in the Tribunal’s decision record.  Just because the Tribunal did not accept the documents, it does not mean that it did not consider them.  Nor does it mean that, if they were considered, they were not considered fairly. 

14. The second ground of application is:

    “The Tribunal committed jurisdictional error of law by failing to comply with its obligations under section 424A(1) of the Act.”

    The particulars the applicant gives is that the Tribunal did not give him particulars of the information that it considered to be the reason, or part of the reason for affirming the decision under review.

15. It seems to me quite clear that what the applicant is seeking here was some form of running commentary from the Tribunal of its decision making processes, which the High Court in SZBEL v Minister for Immigration (2006) 228 CLR 152, specifically adjured. In SZBYR v Ministerfor Immigration (2007) 235 ALR 609 at [18], the High Court affirmed the views of the Full Bench of the Federal Court. Finn and Stone JJ, in VAF v Ministerfor Immigration (2004) 206 ALR 471, that the word “information”:

    “...does not encompass the Tribunal’s subjective appraisals, thought processes or determinations…”

    If the contrary were true s.424A would, in effect, oblige the Tribunal to give advance written notice, not merely of its reasons, but of each step in its prospective reasoning process.

16. The third ground was that

    “[t]he Tribunal committed jurisdictional error of law by failing to comply with its obligations under section 425 of the Act.”

    This is particularised by saying that the Tribunal failed to give the applicant a genuine opportunity for him to give oral evidence.  This complaint was given a more detailed explanation at the hearing.  The applicant said that the Tribunal constantly asked him questions that were on the same subject, so that he became confused and found it difficult to give consistent answers.  He also said that the interpreter caused him problems, and because of that he did not understand some of the questions posed by the Tribunal.  Both of these complaints suffer from the same problem, which is that they have to be proved and mere assertions will not suffice. 

17. As the Full Bench, Ryan, Tamberlin and Middleton JJ said in WALN v Minister for Immigration [2006] FCAFC 131 at [29]:

    “To succeed on this ground the appellant must establish that he was effectively prevented from giving his evidence; see Perera (supra) at [38]-[41]. Alternatively, he must establish that errors had occurred in translation which were so material as to cause the decision-making process to miscarry; see Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168, at [18]. Those authorities were applied in Appellant P119 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 230 and WACO Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171; (2003) 131 FCR 511, at [63]-[68].”

18. In order to make good this ground, the applicant would have had to provide the Court with a transcript, at the very least, and show, as suggested by Kenny J in Perera v Ministerfor Immigration (1999) 92 FCR 6:

    “the coherence of those answers, the consistency of one answer with another and the rest of the case sought to be made and, more generally, any evident confusion in exchanges between the Tribunal and the interpreter.” [authorities omitted]

    The applicant has not done this and, in the absence of a transcript, I can only resort to the best evidence before me, which is the Tribunal’s own account of what occurred.  That does not, to my mind, indicate that there were any interpretation errors or that the Tribunal’s questioning of the applicant so confused him that he was unable to give coherent responses. 

19. The applicant did complain to the Tribunal that his memory was not good and that he was homesick, but as the Tribunal said at [70] [CB 126]:

    “[i]n the Tribunal’s view the applicant was well able to give his oral evidence on both occasions he appeared before the Tribunal.”

20. Finally, the applicant complained that:

    “The Tribunal’s decision has included a reasonable apprehension of bias.”

    In particularising this, the applicant said that the Tribunal reached its decision in a manner that revealed irrationality, illogicality and unreasonableness.  That it is an assertion; it is not a particularised one.  And whilst I accept that in SZMDS v Minister for Immigration [2010] HCA 16 the High Court left open the possibility of jurisdictional error arising out of irrationality, illogicality or unreasonableness, I would have to have more than an assertion of it in order to make such a finding. I should say that I have read the Tribunal’s decision and it does not seem to me to contain these errors. The applicant’s claims are articulated; they were investigated and a determination was made upon them based upon the evidence which the Tribunal had received.

21. To the extent that the applicant is claiming bias or apprehension thereof, I am happy to adopt the respondent’s helpful paraphrase of the views expressed by von Doussa J in SCAA v Ministerfor Immigration [2002] FCA 668. As regards to the applicant’s claim of bias, I would note again that there are no particulars. In Ling v Ministerfor Immigration [2004] FCA 1069 Branson J at [57] opined:

    “The appropriate test to be applied in determining whether the conduct of the Tribunal gave rise to an apprehension of bias is that identified by the High Court in Re Refugee Review Tribunal; Ex Parte H 75 (2001) ALJR 982 at [28]. That test is whether a hypothetical fair-minded lay person, who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to have given rise to an apprehension of bias, might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided.”

    In this case the hypothetical, fair-minded, lay person is provided with no information as to the conduct which is said to have given rise to the apprehension of bias, and so I am unable to make such a finding.

22. The applicant has failed to establish that the Tribunal fell into jurisdictional error in the manner in which it reached its decision. The application is dismissed. The applicant shall pay the first respondent’s costs assessed in the sum of $3,900.00.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  2 July 2010