SZOHR v Minister for Immigration
[2010] FMCA 628
•15 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOHR v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 628 |
| MIGRATION – Refugee Review Tribunal – findings of fact were reasonably open to the Tribunal – applicant had reasonable opportunity to put forward evidence – no bias or apprehended bias on the part of the Tribunal – Tribunal complied with obligation under s.424A(1) – no irrationality, illogicality, or unreasonableness on the part of the Tribunal – Tribunal’s decision is a privative clause decision – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.91R, 420, 422, 424AA, 424A, 425, 476 |
| NAIS & Ors v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 470; [2005] HCA 77 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 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 Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 Attorney-General (NSW) v Quin (1990) 170 CLR 1 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 |
| Applicant: | SZOHR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 731 of 2010 |
| Judgment of: | Nicholls FM |
| Hearing date: | 15 July 2010 |
| Date of Last Submission: | 15 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 15 July 2010 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondents: | Mr P Reynolds |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 1 April 2010 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 731 of 2010
| SZOHR |
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 1 April 2010 under s.476 of the Migration Act 1958 (Cth) (“the Act”). The application seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 9 March 2010, which affirmed the decision of the delegate of the respondent Minister for Immigration to refuse a protection visa to the applicant.
Background
The Minister has put a bundle of relevant documents before the Court (“Court Book” – “CB”) from which the following can be relevantly derived.
The applicant is a national of the People’s Republic of China (“China”), who arrived in Australia on 4 April 2007. She applied for a protection visa on 31 July 2009 (CB 1 to CB 37). The applicant was represented by a migration agent (CB 27).
Claims to Protection
The applicant’s claims to protection were initially set out in a statement attached to the protection visa application (CB 33 to CB 36).
The applicant claimed to be a farmer. In December 1997 her husband came to Australia. In May 2005 it was arranged for a particular couple to work on her farm. They were described as Taoists, which was said to be an “illegal” religion in China. In January 2007 she permitted them to establish a “secret” Taoist temple in an old house which her husband had previously used in a fish farming operation.
The applicant subsequently became a member of this temple, which eventually grew to encompass over 30 people who secretly worshipped every Sunday evening.
Some time in March 2007 the police discovered one of the couples distributing promotional material. Police arrested the couple. As a result the applicant was subsequently interrogated by police on a number of occasions. The Taoist couple did not reveal her involvement. Nor did the police find the secret temple. Nevertheless, the applicant came to Australia on a student guardian visa to escape persecution. The student guardian visa was issued in relation to a student visa which was issued to one of her sons.
After her arrival, the police discovered the secret temple and learned of her involvement.
The Delegate
The applicant was interviewed by the delegate on 12 and 20 October 2009. One additional matter that emerged was whether the applicant’s husband was in Australia, given that there was no record of his arrival in Department of Immigration records. The delegate accepted that the applicant practised in one form of the Taoist tradition in Australia since 6 June 2009. But disregarded this conduct pursuant to s.91R(3) of the Act.
The delegate was not satisfied that the applicant would face serious persecutory harm in China for her practice of Taoism, citing her ability to leave legally and the delay in making her protection visa application. The application therefore was refused.
The Tribunal
The applicant applied for a review by the Tribunal on 24 November 2009. She continued to be represented by the same migration agent (CB 71 to CB 74).
The applicant attended a hearing before the Tribunal on 12 January 2010, as, it appears, did a witness also from the Tsing Tao church (CB 80 and CB 102).
By a letter dated 18 January 2010, the Tribunal invited the applicant to comment or respond to certain information which it said it considered would be the reason, or a part of the reason, for affirming the delegate’s decision (CB 105 to CB 113). In particular this involved various information which the Tribunal said gave rise to a view of contradictions, inconsistencies, and implausibilities in the applicant’s claims. While this was said to derive from the applicant’s written statement attached to her protection visa application, and her oral evidence before the Tribunal, it also involved what she told the delegate at the interview. The letter also made reference to the absence of departmental records in relation to when her spouse was said to have left China in circumstances where he was wanted by the PSB.
The applicant responded in writing on 1 February 2010 (CB 114 to CB 120).
It is clear that the Tribunal did not find the applicant to be a credible witness. It set this out squarely (see in particular [117] of the decision record). The Tribunal gave extensive and comprehensive reasons for this ([118] to [165], [171]). This reasoning included findings made in relation to each of the critical factual matters in the applicant’s account of the claimed events in China, her later claims relating to her husband, and the circumstances of her application for a protection visa. The Tribunal found the applicant’s evidence in relation to her factual account to be inconsistent, contradictory, and in part implausible.
The Tribunal also considered a baptism certificate and a membership card said to show that the applicant participated as a Taoist member in Australia, and that she had commenced her practice on 6 June 2009.
The Tribunal accepted that the applicant had become such a member in Australia at that time, and indeed had attended monthly meetings. But it disregarded this conduct pursuant to s.91R(3) of the Act. This was because, in light of its comprehensive adverse credibility finding, and in light of the range of adverse findings as to claimed events in China, the Tribunal could not be satisfied that the conduct in Australia was engaged in other than for the purpose of strengthening her refugee claims ([166] to [168]).
In light of the above, the Tribunal was not satisfied that the applicant would face persecutory harm for a Convention reason if she were to return to China. It therefore affirmed the delegate’s decision.
Application to the Court
The applicant has put four grounds for consideration before the Court:
“1. The Tribunal committed jurisdictional error of law, because the Tribunal failed to act according to substantial justice and the merits of the case.
2. the Tribunal failed to bring an unprejudiced mind to the review; and the Tribunal’s finding included a reasonable apprehension of bias.
3. The Tribunal committed jurisdictional error of law by failing to comply with its obligations under Section 424A(1) of the Act.
4. The Tribunal’s decision was infected with jurisdictional error in that the reasoning process employed by the Tribunal in reaching its decision reveals irrationality, illogicality and/or unreasonableness”.
Before the Court
Before the Court today the applicant appeared in person. She was accompanied by her husband who, it must be noted, was not an applicant before the Court. Nor indeed before the Tribunal. But he explained that he had come to support his wife in her application. Both the applicant and her husband were assisted by an interpreter in the Fuqing language. Mr P Reynolds of counsel appeared for the first respondent.
In addition to the Court Book, the Minister has filed written submissions drafted by Mr Reynolds. Nothing further has been received from the applicant.
Before the Court the applicant complained that she was a real refugee and that the Tribunal did not believe her. That she would be arrested if she were to return to China. That she really was a member of “Heavenly Tao”, and that the Tribunal’s decision was not fair.
In addition to supporting his wife’s submissions, the applicant’s husband added that he had come to explain what he perceived to be an error in the Tribunal’s decision record. That is that in fact he was actually in Australia. The applicant husband also explained that his wife could not go back to China because the whole family is in Australia. He made reference to two children studying in Australia.
Consideration
Ground One
As Mr Reynolds submits, the language of ground one evokes the language of s.420(2)(b) of the Act.
It is the case, as Mr Reynolds submits, that this section does not impose any condition on the Tribunal’s exercise of its power and is not capable of giving rise to jurisdictional error, even if some breach were to be found (NAIS & Ors v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 470; [2005] HCA 77).
It is unclear, therefore, what exactly the applicant was seeking to achieve in pleading this ground. But in this regard, I note that before the Court it was quite clear that the applicant had little understanding or even knowledge of what had been pleaded as the grounds of her application. She was unable to assist the Court with anything further.
But even in seeking to give as wide a scope as possible to what is set out in the application, the applicant’s complaint also fails on a factual level. On what is before the Court the Tribunal did act according to the merits of the applicant’s case. The problem for the applicant is that the Tribunal found her claims to be unmeritorious. It made comprehensive findings which were reasonably open to it to make. It gave cogent reasons. All was within the proper exercise of its jurisdiction.
As to the matter of substantive justice, it is difficult to see what further opportunity the applicant could have sought from the Tribunal. She was properly invited to a hearing before the Tribunal and given every opportunity to make and explain her claims.
The Tribunal’s account of what occurred at the hearing is the only account put before this Court. Despite opportunity provided to the applicant, she has not put any evidence before the Court, for example by way of transcript, to challenge what the Tribunal says occurred. In these circumstances it is not open to the Court to otherwise draw inferences as to what the applicant may now say as to what otherwise may be said to have happened (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241).
This account reveals that the Tribunal carefully explained its concerns to the applicant about the difficulties that it had with her evidence and with her claims. While on any plain reading the applicant could have been left in no doubt as to the Tribunal’s concerns and view of her evidence, its subsequent letter simply reinforced the view that it took of her evidence.
The applicant, with the assistance of a registered migration agent, had every opportunity to satisfy the Tribunal as to the truth of her claims. That she was unable to do so does not reveal any failure on the part of the Tribunal acting in accordance to substantial justice, with whatever view is taken or whatever the extent may be of the meaning of that phrase.
Ground one therefore does not succeed.
Ground Two
Ground two, as Mr Reynolds again submits, should be taken, and is taken, to assert both bias and the apprehension of bias on the part of the Tribunal (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] (“SBBS”), 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).
What I particularly note is that the allegations made in ground two of the application are serious. They are serious because they go to the very integrity of the relevant decision maker. As Mr Reynolds submits, bias needs to be properly pleaded and clearly requires to be distinctly proved (SBBS). The absence of any particulars to the grounds in the application, the inability of the applicant, or her husband for that matter, to add anything relevant today, leaves the situation that the complaint does not say why or how the Tribunal was biased or why an apprehension of bias would arise.
Essentially, the best that can be said is that, by inference, given that the only evidence the applicant has provided to the Court was the Tribunal’s decision record that was attached to the affidavit that she made and filed at the same time as her application, the applicant relies generally on the Tribunal decision record. As has been said, however, it is a rare case where such complaints can succeed relying on this evidence alone (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38]).
On what is before the Court the Tribunal’s action does not reveal that it did not bring an open mind to the conduct and disposition of the review. There is nothing to establish that it was so committed to a conclusion already formed as to be incapable of alteration irrespective of the evidence or the arguments before it. That, of course, encapsulates the relevant test for bias to be established.
Nor, on what is before the Court, can it be said that the hypothetical, well-informed lay observer would reasonably apprehend the Tribunal not to have brought an impartial, open mind to the proceedings. Referring there to the relevant test for establishing apprehension of bias (see Ex parte H at [27]-[28], Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 at [14]).
Given the state of the evidence, ground two is not made out.
Ground Three
Ground three asserts a breach of s.424A(1) of the Act. Again, no particulars are provided. Nor is the applicant, or her husband, able to assist the Court further in this regard.
It is clear that the Tribunal did rely on information in the making of its decision. It can be said that there were times, prior to the making of this decision, where the Tribunal considered there was information that would be the reason, or part of the reason, for affirming the decision under review. Such information ranges from what was written in and accompanying the protection visa application, the applicant’s evidence at the hearing before the Tribunal, what was said to the delegate at the interview, and the reference to departmental movement records.
First, the Tribunal’s adverse views of the applicant’s evidence and claims and what she has put before the Tribunal is not information for the purposes of s.424A(1) (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; at [18]).
What the applicant put in her protection visa application and what she said to the Tribunal at the hearing, in any event, is excluded from the operation of s.424A(1) by s.424A(3)(ba) and (b) respectively.
Of course, what the applicant told the delegate at the interview, and indeed the information relevant to departmental movement records in relation to the applicant’s spouse, does not fall within any of the exemptions in s.424A(3).
But the Tribunal complied with its s.424A(1) obligation in this regard because it did write to the applicant. Any plain reading of its letter reveals that it comprehensively covered the matters arising from the interview with the delegate that it considered would be the reason, or part of the reason, for affirming the decision under review. It clearly set out that part of the delegate’s discussion with the applicant concerning departmental “movement” records indicating that her husband was not in Australia.
I will return to one aspect of that in a moment. But I should note, for the sake of completeness, that no error is revealed in the Tribunal giving information in its letter that otherwise falls within any of the exclusions in s.424A(3). Further, I must also agree with Mr Reynolds’ submission that, in the absence of any transcript provided by the applicant, the Tribunal’s account of what occurred at the hearing remains unchallenged. On the Tribunal’s account it is not open to the applicant now to assert that information otherwise caught by s.424A(1) was not given to the applicant at the hearing such that s.424AA was engaged. In these circumstances, and given s.424A(2A), the Tribunal complied with any obligation arising from s.424A(1), given that s.424AA is a facility available to the Tribunal for this purpose (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46).
Before the Court today the applicant’s husband, amongst other things, asserted that he had come to the Court to tell the Court that in fact he was physically in Australia, and that it was not correct, as he said was asserted by the Tribunal, to say that he was not here.
I must note from that outset that I agree with Mr Reynolds’ submission today before the Court. The husband’s presence or otherwise in Australia was not a critical issue for the Tribunal. The matter generally arose at the hearing with the applicant where it emerged from the applicant that her husband had left China at some earlier time because he had been wanted by the PSB. It was during the course of earlier discussion with the delegate that reference was made to no record of the applicant’s husband having entered Australia being recorded on the Immigration Department’s movements record.
With reference to [120] to [126], it is clear that there was some reference by the Tribunal to these departmental records. However, at the hearing, the Tribunal was reflecting what had been said at the second interview with the delegate.
The explanation was given that the applicant’s spouse had come to Australia using a Thai passport and a false name. But again, as must be emphasised, the applicant’s husband’s physical location in Australia or otherwise was not integral or central to the Tribunal’s chain of reasoning in determining the review.
The critical matter before the Tribunal was whether this claim made by the applicant, as it related to her husband, gave rise to any well-founded fear of Convention related persecution if she were to return to China. After all, the applicant’s husband was not an applicant before the Tribunal. What was critical and relevant was how the applicant’s claims about her husband’s reasons for leaving China would affect her chance of persecutory harm if she were to return to China.
It is clear, for the reasons that it gave, that the Tribunal rejected the applicant’s claims that her spouse left China for the reasons that she gave. That would have been sufficient to have dealt with the matter. But nonetheless, I can only assume in an abundance of caution, the Tribunal also went on to consider the alternative. That is, even if he had left China for the reasons that the applicant gave, the Tribunal found that this did not lead to a conclusion that the applicant had a well-founded Convention related fear as a result. The Tribunal gave reasons for this.
I note in particular that the Tribunal found that, while the applicant’s husband may have fled for the stated reason, she did not flee China and remained living in her village for more than 10 years. As Mr Reynolds again submitted today, the applicant had ample opportunity to establish that her husband’s reasons for leaving China would have led to a real fear, and a real chance of persecution for her.
What remains is, on what the applicant chose to put before the Tribunal, the Tribunal’s findings, on either alternative, would not lead to a well-founded fear of persecution were reasonably open to the Tribunal to make for the reasons that it gave.
In terms of s.424A(1) which, after all, is the basis of the complaint in ground three, I note that, as I said earlier, this matter was squarely raised in the Tribunal’s s.424A letter. It is clear it fully complied with its s.424A obligation in this regard.
Given what is plainly before the Court, whether or not the applicant’s husband was physically in Australia was not a matter that was relevant to the Tribunal’s reasoning. But in any event it does not reveal jurisdictional error on the part of the Tribunal.
Ground Four
Ground four asserts that the Tribunal’s decision was variously irrational, illogical, and unreasonable. The extent to which such allegations may reveal jurisdictional error was recently considered by the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (“SZMDS”). The illumination and direction was provided both in the joint judgment of Gummow ACJ and Kiefel J on the one hand, and Crennan and Bell JJ on the other. There is, of course, some divergence of the direction as between those two judgments and the guidance given to this Court as to how to approach such allegations. But whichever set of High Court reasoning is applied to the current circumstances, the applicant’s complaint, in light of the evidence before the Court in the current case, does not succeed.
There is nothing, for example, in the reasoning of the Tribunal in the current case to show that the relevant decision making was based upon an assumption which had no basis in the evidentiary material, or which was contrary to the overwhelming weight of that material. Nor was it a decision based upon a contradiction of the processes by which conclusions were reached or upon the drawing of inferences which were not properly open. (See in particular SZMDS at [23] and [24].)
Nor, on the other hand, with reference to what Crennan and Bell JJ set out, in particular at [121] to [131], can I see that the Tribunal’s decision in the current case was so unreasonable that no reasonable decision maker could have come to the decision that was made. Echoing there, of course, what has been, in shorthand, described as Wednesbury unreasonableness (arising from Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223).
Bearing in mind both those judgments, and indeed being guided and directed by the methodology employed by Heydon J in that same case, the current case reveals no irrationality, illogicality, or unreasonableness. Ground four also does not succeed.
Other Consideration
What is left, therefore, of what the applicant and her husband said to the Court today is, first, the complaint that the rejection by the Tribunal was not fair.
Such an assertion must be understood in light of what has been said by the High Court that it is not a fair outcome but a fair process to which regard must be had (Attorney-General (NSW) v Quin (1990) 170 CLR 1 at [35]-[36] per Brennan J). I note that this is a case to which s.422(B) of the Act applies, making the matters set out in Division 4 of Part 7 of that Act the exhaustive statement of the natural justice hearing rule. I have already made reference to the Tribunal’s obligations in s.424A, which is a part of that division.
I note again that the applicant was invited to a hearing and provided with a hearing pursuant to s.425 of the Act. With reference to what was said by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 in relation to the Tribunal’s procedural fairness obligations as they arise under s.425, I cannot see any error on the part of the Tribunal.
Nor can I see that any other part of that Division was breached by the Tribunal.
As for the remainder of the complaints before the Court today, the complaint that the Tribunal did not believe the applicant is of course, on its own, a matter for the Tribunal. As with the complaint that the applicant cannot go back to China, these are matters that do not rise above what can only be described as a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259).
Nor is any error revealed on the basis that, as the applicant’s husband told the Court today, his wife cannot go back to China because the whole family is here, the two children are studying and he is here. Noting, of course, that while he is physically in Australia, he has been here, on what he has submitted to the Court, without lawful authority to be here.
Relevantly, none of what was put to the Court today reveals jurisdictional error on the part of the Tribunal.
Conclusion
For the applicant to succeed today the Court would need to discern jurisdictional error on the part of the Tribunal. I cannot discern such error on what is before me today. In the circumstances, and with reference to the application made to the Court pursuant to s.476 of the Act, this means that the Tribunal’s decision is in fact a privative clause decision. Therefore the application is to be dismissed.
Costs
In my view it is appropriate that an order for costs be made in this matter. The only thing that the applicant has put before the Court as to why the order should not be made is her insistence again that she is a refugee and cannot go back to China. It is clear that my attempts today, both during the hearing and in the delivery of my judgment, to explain to the applicant the nature of the proceedings before the Court today and the relevant issue to be considered by the Court have perhaps not been fully understood by the applicant.
As I have found today, the applicant has been lawfully determined not to be a refugee. I could find no relevant error in the Tribunal’s decision. What remains, therefore, is that there is nothing before the Court, that would argue against the making of the costs order. I will make that order.
As to the amount, I am guided by and have regard to the work that has been done by the Minister’s legal representatives, as evident from the Court’s file. I am satisfied that in all those circumstances the amount sought is a reasonable amount. I will therefore make the order in that amount.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 10 September 2010
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