SZOKG v Minister for Immigration - [2010] FMCA 595

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOKG & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 595

MIGRATION – Review of RRT decision – applicants mother and son from China – where primary applicant claimed her husband had been the victim of local government corruption and that she was suspected of having distributed an anti-government petition – whether Tribunal failed to notify applicant of adverse information under s.424A or denied applicant opportunity to give evidence under s.425 – where neither claim particularised – whether Tribunal’s decision irrational, illogical or unreasonable or whether decision infected with bias.

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

SZHVL v Ministerfor Immigration [2008] FCA 356
NAQS v Minister for Immigration [2003] FCA 1137
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
Applicant A165 of 2003 v Minister for Immigration [2004] FCA 877
Minister for Immigration v Jia (2001) 178 ALR 421

First Applicant:

SZOKG

Second Applicant:

SZOKH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1051 of 2010

Judgment of:

Raphael FM

Hearing date:

2 August 2010

Date of Last Submission:

2 August 2010

Delivered at:

Sydney

Delivered on:

2 August 2010

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1051 of 2010

SZOKG

First Applicant

SZOKH

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicants, who are a mother and son, are citizens of China who arrived in Australia on 3 July 2007. The son had a student visa and the mother had a guardianship visa. On 21 September 2009 the applicants applied for protection (Class XA) visas. The mother was the primary applicant; she will be referred to here as the applicant. On 18 December 2009, a delegate of the Minister refused to grant a protection visa and, on 13 January 2010, the applicant applied for review of that decision from the Refugee Review Tribunal. The applicant and her son appeared before the Tribunal at a hearing and gave evidence. On 14 April 2010 the Tribunal determined to affirm the decision not to grant the protection visas and handed that decision down on the same day.
The applicant claimed to be a person to whom Australia owed protection obligations because before she came to Australia with her son on student and guardian visas, her husband had been involved in paying for part of a road project in the village in which they lived. A local government official had told the husband and a number of other village elders that if they assisted in funding the road project they would have their money repaid in 2007. Her husband apparently advanced about 200,000.00 RMB towards the project. It was not returned to him. Apparently, it had been sent by the Fuqing Municipal Government to the township government, but some corrupt officials had retained the money there. The applicant’s husband lodged a complaint and, on 23 March 2007, police officers came to their home, searched it and took away her husband. He remained in detention for approximately one month until a bribe was paid to have him released. When he returned home he showed evidence of having been ill treated in detention and seems to have suffered some form of mental breakdown.
The applicant responded to this treatment of her husband by arranging with her brother-in-law to print, in the husband’s printing factory, a petition referring to the corrupt police and the abuses of human rights that occurred in China. The applicant persuaded a number of people to distribute copies of this petition around the local villages. The applicant said that a member of her husband’s staff was arrested on 30 June 2007 while distributing the petition. The applicant was informed of this and decided immediately that she should leave, which she did, with her son, on 2 July. Since she has left, her husband has continually been questioned by the police, but because of his mental condition, has been unable to provide them with any assistance. The applicant says that the woman who was found with the petition documents confessed and said that she, the applicant, was responsible for them. So the applicant believes that if she returns to China, she will be arrested.
At the hearing before the Tribunal the applicant reiterated this story and was questioned by the Tribunal upon it. The Tribunal asked her a number of questions, including a series of questions about the fact that she had renewed her passport whilst in Australia and noted that it might be difficult for her to do that if she was a wanted person. The applicant said that she had paid a bribe to a Chinese official to do so. It was later revealed that she had gone to Perth for the purposes of arranging the renewal of her visa. She said that a relation or friend of the family was working in the Perth consulate. The Tribunal questioned the applicant about why she had taken so long to make her claim for asylum. She said that a migration agent had advised her that there was no need for her to make a claim while she still had a valid visa. The Tribunal pointed out to her that her guardianship visa had expired approximately nine months before she made the claim.
Another matter that the Tribunal took up with the applicant was the fact that her son had gone back to China in 2008. The applicant had said that he wanted to go and visit his father and, when the son gave his evidence, he confirmed this. The Tribunal considered it odd that if the applicant’s son was a joint applicant for protection he should have gone back to China if there was a fear that he would be arrested.
The applicant’s son was questioned about the events which led to him and his mother leaving the country. He said that he had been at boarding school until about June 20 when he was told to come home and prepare to go to Australia. The Tribunal took up with him some responses of his which did not appear to be entirely consistent with those of his mother. Both he and his mother said that he was quite young at the time that he left China and so he was not told very much about what was going on.
In its Findings and Reasons, the Tribunal came to the conclusion that it was unable to find that the applicant was a credible witness.
“The primary applicant gave her evidence in a well-rehearsed fashion. Her evidence was given in the manner of someone who had memorised a script rather than someone speaking from experience. When she was asked for details or information that was not contained in her written statement to the Department of Immigration and Citizenship, she had difficulty answering the question.” [133] [CB 123]
The Tribunal noted that there seemed to be some inconsistency in her evidence with regard to the time when decided to leave China for Australia. The essence of the concern that the Tribunal had was that the applicant had told the Tribunal that she only decided to leave the country on 30 June when her husband’s employee was arrested, but she had told her son to come home and prepare to go to Australia on 20 June. She told the Tribunal that she had been able to obtain a ticket on 1 July and she already held the necessary visas. The applicant claims that this finding was unfair because the Tribunal did not really understand what she was saying, which appeared to be that she was arranging for herself and her son to leave but the flight was brought forward because of the events. I tend to think this might be right but, even if it is, any mistake by the Tribunal was one made within jurisdiction.
The Tribunal was also concerned about the applicant’s ability to renew her passport and her ability to have left the country when she did, given the independent country information which tended to indicate that these things could not occur to persons who were on some black or wanted list. The Tribunal did not accept that the applicant could have bribed a member of the consular staff to renew her passport as it would be worth more than his job to do so.
The applicant had provided the Tribunal with two documents which she said corroborated her claims. The first was a medical report on her husband and the second was a document evidencing his discharge from detention. The Tribunal raised with the applicant independent country information concerning document forgery in China but, although the applicant denied this, the Tribunal concluded at [151] [CB 135] that it could not accept that they were genuine documents.
Finally, the Tribunal considered that:
“When considering the evidence as a whole, the Tribunal finds that there are inconsistencies between the written evidence given by the applicants to the Department of Immigration & Citizenship and to the Tribunal, between the evidence given by the first named applicant and the second named applicant to the Tribunal and within the evidence given by the second named applicant to the Tribunal. These inconsistencies raise serious concerns in relation to the credibility of both applicants.” [152] [CB 135]
The Tribunal concluded that it could not accept that the applicant’s husband had been arrested or detained or tortured by the authorities, or that the applicant had been threatened by the police and had organised the petition which she got her brother-in-law to print. It did not accept that the employee had been found distributing the petitions and been arrested and told the authorities that it was the applicant who was responsible for them.
The applicant who speaks no English and has very little education filed an application with this Court on 12 May 2010 seeking review of the decision of the Tribunal. This type-written document, clearly prepared by a “friend”, gives three grounds of application. These are:
“1.The Tribunal committed jurisdictional error of law by failing to comply with its obligations under section 424 of the Act.
Particulars
The Tribunal failed to give me, in the way that the Tribunal considers appropriate in the circumstances, particulars of the information that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review; and the Tribunal failed to ensure, as far as reasonably practicable, to understand why it is relevant to the review; and the Tribunal failed to invite me to comment on it.”
The above particulars are a direct quotation from s.424A of the Act (not s.424). There are no particulars of the information referred to and I note that at [91] [CB 126] the Tribunal appears to have complied with the requirements of s.424AA in relation to the concerns and inconsistencies that it had discovered in the applicant’s evidence.
To the extent that it was necessary for the Tribunal to have done this, complying with s.424AA relieves the Tribunal of the other obligations under s.424A, in particular, of writing to the applicant. In any event, as no information is provided that would assist the Court in deciding whether the Tribunal failed to comply with s.424A, I must reject this ground.
The second ground was:
“2.The Tribunal committed jurisdictional error of law by failing to comply with its obligations under section 425 of the Act.
Particulars
The Tribunal failed to create a genuine opportunity for me to give my oral evidence or to present arguments arising in relation to the decision under review at the hearing before it.”
The particulars are a paraphrase of s.425 of the Act. Once again, there are no real particulars of the alleged failures by the Tribunal to comply with that section. What can be said is that the Tribunal’s decision record commences at [CB 116] and concludes at [CB 136]. It seems to me to set out in considerable detail the claims of the applicant, the discussions between the applicant and her son and the Tribunal, and the reasons the Tribunal put forward for finding her not to be a person to whom Australia owed protection obligations. In the absence of any particulars, this ground must also be rejected.
The final ground was:
“3.The Tribunal’s decision has included a reasonable apprehension of bias;
Particulars
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.”
Regrettably, the Court was not told what extracts from the Tribunal decision are irrational. There are no hints as to what might constitute illogicality and no indications of where unreasonableness might be found. Without these, and bearing in mind that McKerracher J said in SZHVL v Ministerfor Immigration [2008] FCA 356 at [17] that:
“It would be a rare and extreme circumstance that bias on the part of the Tribunal would be established simply by reference to the reasons produced by the Tribunal: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J. See also SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [16] per Tamberlin, Mansfield and Jacobson JJ.”
I would have to reject this ground as well.
On 28 July 2010 the applicant filed with the Court some submissions. The first referred again to what she described as the reasonable apprehension of bias. She commences by extracting a large section of her PVA submission, found at [CB 20]. She then states:
“Obviously, my husband’s suffering at the detention centre made me change significantly. That’s why I dared to organise and distribute pamphlets. I called on people to overthrow the corrupt Communist party even though I had been afraid to even go to the police station in the past. The Tribunal’s finding has obviously included a reasonable apprehension of bias (paragraph 135 of the Tribunal’s decision).”
In this paragraph of the Tribunal’s decision, reference is made to the difficulty the Tribunal had in reconciling these matters. The Tribunal came to the view that:
“It is highly improbable that the applicant would have organised and distributed pamphlets and called for the overthrow of the Communist party.”
It seems to me that up to this point the applicant is doing no more than arguing with the Tribunal’s findings, which would constitute a request of this Court to provide her with merits review. That cannot be done. But she goes on to say that she was misled by the Tribunal and then argues about the evidence concerning the arrested friend. I have looked at that evidence which relates to the friend confessing on 30 June 2007 and naming the applicant which appears to come from the applicant’s PVA statement at [CB 20]. Admittedly, the date is not there mentioned.
However, I cannot find any reference to when the applicant was meant to have been told that she had been betrayed. But clearly, it must have been at that time because if the employee was arrested on 30 June and the applicant made her arrangements to leave Australia on 1 July by buying a ticket, there would have been no point in these things having happened if the applicant was not frightened of what the employee had revealed. In any event, to the extent that the Tribunal may have made an error, it was again an error within jurisdiction.
The submission continues with the suggestion that the Tribunal should not have given much weight to her son’s evidence. It explained that the son was nervous of the Tribunal and that he did not know very much about the events in China. Once again, the applicant seems to me to be arguing with the Tribunal’s decision. This is not a matter for the Court, particularly as the weight given to evidence is a matter entirely for the Tribunal; NAQS v Minister for Immigration [2003] FCA 1137.
There is then a reference to the applicant’s lack of education which is utilised as an excuse for her failing to lodge the PVA at an earlier stage. The applicant made this point to the Tribunal and it was rejected. The submission continues with the suggestion that the Tribunal had misstated the applicant’s evidence about her son returning to China. The applicant suggests that the Tribunal made a finding that she had allowed her son to go to China or sent her son back to China whereas she indicates that he was insisting on going because of his concern for his father [146] [CB 134]. When this issue was raised with the applicants at the hearing, the primary applicant responded that the secondary applicant just wanted to return to China to see his father. She did not think the Chinese authorities would do anything to him, or that it would be dangerous for him. The Tribunal was of the view that if the situation was as dangerous as claimed by the primary applicant, she would not have taken the risk of sending her son back to China where he could also potentially have been arrested, detained and tortured, nor would the secondary applicant have taken the risk of returning to China [146-147] [CB 134-135]. It is clear that the Tribunal used the word “sent” as a synonym for “allowed” and did not misstate the evidence.
Finally under this heading, the applicant submits that the Tribunal failed to:
“…take independent mind to consider two documents which I had submitted to it. Particularly the Tribunal obviously does not have basic knowledge about the actual situation in China.”
The Tribunal did consider the two documents which the applicant submitted. It discussed them with her. It discussed with her the possibility that they might not be genuine and came to a conclusion that this was likely to be the case. This is an attack on the merits and not on the Tribunal’s state of mind.
In Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 the test for apprehended bias was set out:
“[27] The test for apprehended bias in relation to curial proceedings is whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. …Perhaps it would be better in the case of administrative proceedings held in private to formulate the test for apprehended bias by reference to 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 give rise to an apprehension of bias.”
The applicant has not pointed out in her submissions any area in which the hypothetical fair minded lay person might have concerns about the Tribunal’s conduct in relation to this application. Certainly nothing has been suggested which would indicate to me that the Tribunal might be thought to have a state of mind which was so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented; Applicant A165 of 2003 v Minister for Immigration [2002] FCA 877 at [58] per Lander J quoting from Minister for Immigration v Jia (2001) 178 ALR 421 per Gleeson CJ and Gummow J at [72].
The second matter raised by the applicant in her submissions was:
“2.[It is] submitted that the Tribunal failed to comply with its obligation under section 424A(1) of the Act.
Particulars
The Tribunal has regarded some information obtained from the Departmental interview, which I have given to the department orally, as the reason or part of the reason to a further Departmental decision.”
At [29] [CB 120] the Tribunal sets out the claims made by the applicant in the departmental interview, but does not proceed to take any steps which one could say undermined those claims. It then questioned the applicant about these matters and made findings about them based purely upon her responses to it. I am unable to see how any obligation to comply with the provisions of s.424A(1) of the Migration Act arose in these circumstances.

When the applicant appeared before me today, she told me that the Tribunal was not fair, that she had many things to say but she was not allowed to say them. And then her application was refused. The applicant has not provided me with a copy of a transcript of the Tribunal hearing, nor with a tape recording of it, and thus I am unable to make any finding as to the truth or otherwise of that statement. All I can say, and already have, is that the Tribunal’s decision was full and reasoned and I doubt very much whether any important matters raised by the applicant were omitted.
As I have been unable to find that the Tribunal fell into jurisdictional error in any of the ways suggested by the applicant in her application or her submissions, I am obliged to dismiss the application and order that the applicant pay the first respondent’s costs, which I assess in the sum of $4,000.00 which order shall be made against both applicants. The second applicant being a person over the age of 18 years.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 12 August 2010