SZOSP v Minister for Immigration

[2011] FMCA 33

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOSP v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 33

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in China – applicant not believed – whether the Tribunal breached s.424A of the Migration Act 1958 (Cth), demonstrated bias or erred in stressing an absence of corroborative documents considered.

Migration Act 1958 (Cth), ss.36, 424A

Minister for Immigration v Jia [2001] HCA 17; 205 CLR 507
Minister for Immigration v NAMW [2004] FCAFC 264; (2004) 140 FCR 572
NAHI v Minister for Immigration [2004] FCAFC 10
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
Randhawa v Minister for Immigration (1994) 52 FCR 437
Re Refugee Review Tribunal; ex parte H [2001] HCA 28; (2001) 179 ALR 425
SZBYR v Minister for Immigration (2007) 235 ALR 609
VHAP of 2002 v Minister for Immigration [2004] FCAFC 82

Applicant: SZOSP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2349 of 2010

Judgment of: Driver FM

Hearing date: 27 January 2011

Delivered at: Sydney

Delivered on: 27 January 2011

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr A Markus
Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2349 of 2010

SZOSP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was made by the Principal Member on 1 October 2010.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from China and had made claims of political persecution.  Background facts relating to the applicant’s claims and the Tribunal decision on them are conveniently set out in the Minister’s written submissions.   

2. The applicant, a national of the People’s Republic of China (“China”), arrived in Australia on a three month tourist visa on 13 January 2010 and applied for a protection visa on 12 April 2010 (Relevant Documents "RD" 1, 3, 27).  In a statement annexed to her protection visa application the applicant claimed to fear persecution in China due to her political opinion arising from having agitated to prevent child labour abuse.  She claimed that between April and June 2008 she contacted various institutions and the police, including making complaints in writing to prosecuting authorities and to a newspaper. She claimed to have received threatening telephone calls in March 2009 and was later detained by the police. She also claimed to have been assaulted in September 2009 due to which she required hospitalisation (RD 28-31). 

3. The applicant had previously held an Australian student visa, completing studies in translation.  She re-entered Australia in 2010 on a tourist visa with the stated aim of visiting a friend in Australia.  She later sought waiver of condition 8503 on her visa with the intention of extending her stay which was refused (RD 28, 30, 42, 47). 

4. On 30 June 2010, a delegate of the Minister refused the applicant's protection visa application (RD 43-55) and on 22 July 2010, the applicant applied to the Tribunal for review of the delegate's decision (RD 56-62).  The applicant was invited to, and attended, a hearing of the Tribunal on 10 September 2010 at which she gave evidence (RD 65, 69-70). 

5. On 13 September 2010, the Tribunal wrote to the applicant inviting her to comment on information, to which the applicant responded in writing on 26 September 2010 (RD 75-78).

6. In a decision dated 29 October 2010, the Tribunal affirmed the decision of a delegate of the Minister to refuse the applicant a protection visa (RD 79-93).  In summary, the Tribunal's findings were:

   a)the Tribunal accepted the applicant was a citizen of China who may have become aware of a factory employing child labour in Jinan City as claimed. However, the Tribunal did not accept that the applicant suffered persecution as a consequence, and therefore concluded that she had invented her claims for protection (RD 91 at [63]).  There were three reasons for these findings.   

   b)First, the Tribunal considered the timing of the applicant having made her protection visa application to be significant.  The applicant did not apply until after her request for an extension to her tourist visa was refused and the Tribunal did not accept as convincing the applicant's explanation for not having done so – ie. that she did not want to bring risk to her family and friends due to the government finding out that she had made a protection visa application (RD 91 at [63]).

   c)Secondly, the Tribunal did not consider the applicant's assertion that she started to receive threatening phone calls eight to nine months after she had raised concerns about the factory made sense.  Further, it did not accept as satisfactory the applicant's explanation for this that those responsible thought she would not stop her campaign (RD 91-2 at [64]). 

   d)Thirdly, the Tribunal did not accept the applicant's explanation as to why she had no documents to support her key claims.  With respect to the documents she claimed she had copies of on a USB stick, the Tribunal did not accept that the applicant was too afraid to bring the USB stick with her from China because she feared problems with the Chinese authorities at the border.  The Tribunal noted that she was educated, had a valid passport and did not assert she was on any black list for those leaving China.  The Tribunal did not accept the applicant's explanation for why she did not bring with her copies of her hospital records or why her mother would have got into trouble for sending them to her (RD 92 at [65]-[66]). 

   e)The Tribunal also found in relation to future harm the applicant may suffer, that as country information indicated the reporting of the use of child labour is encouraged by the Chinese government, there is not a real chance the applicant will be persecuted by reason of any real or perceived political opinion as an agitator for the elimination of child labour practices (RD 92 at [69]).

7. The Tribunal was therefore not satisfied the applicant was a person to whom Australia owed protection obligations.

8. These proceedings began with a show cause application filed on 29 October 2010.  The applicant continues to rely on that application. 

9. There are three grounds in the application:

   1. The Tribunal made jurisdictional error under s.424A Migration Act because of ignoring the independent information.

   2.    The decision was affected by apprehended bias.

   3. The Tribunal made jurisdictional error under s.36(2)(a) of Migration Act because they took into account only physical evidence.

10. The application is supported by a short affidavit, which I received.  There is an annexure to the affidavit, which I treated as a submission.  I also received as evidence the affidavit of Louise Bernadette Buchanan made on 24 December 2010, which annexes a transcript of the hearing before the Tribunal.  I had directed the Minister to produce that transcript because the applicant had raised allegations of bias against the Principal Member of the Tribunal.  I also received as evidence the book of relevant documents filed on 30 November 2010. 

11. The applicant has three complaints about the Tribunal decision. The first is an assertion that the Tribunal breached s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) by ignoring independent information. The applicant’s submissions on this point indicate a misunderstanding of the obligations created by that section. The section does not impose on the Tribunal an obligation to refer to any particular country information. Neither does the section impose on the Tribunal an obligation to disclose to an applicant such country information as the Tribunal chooses to refer to. In the present case, the Tribunal did refer to country information, but there was no statutory obligation on the Tribunal to disclose that information to the applicant. I agree with the Minister’s submissions on this issue.

12. Contrary to the applicant's ground, "ignoring independent information" does not give rise to any breach of s.424A of the Migration Act. Section 424A of the Migration Act imposes an obligation upon the Tribunal to provide particulars of certain information that, in its terms, might form part of the reason for rejecting the applicant's claim of persecution:  SZBYR v Minister of Immigration (2007) 235 ALR 609 at [17]. Whether the Tribunal ignored information does not bear on whether the Tribunal complied with its obligations under this section.

13. The applicant's affidavit and submissions appear to state that this ground asserts jurisdictional error arising from the Tribunal not referring in its decision to "independent information" referred to in a letter provided to the Tribunal (RD 60-62).  In that letter, the applicant states there are "a lot of documents and reports" from international organisations which support her claims.  She then refers to "US State Department's annual People's Republic of China Human Rights Reports Section 1A, D, F, Section 2A, Section 3, 6, 7" and lists a number of other organisations.  Neither the specific information being relied upon by the applicant, nor how such information might support her claims, is particularised in the applicant's letter.  Contrary to the applicant's assertion, the Tribunal in fact referred in its decision to the only independent information the applicant in any way identified in her letter, the 2009 US State Department Human Rights Report (see RD 89-90). 

14. In any event, the choice of country information and the weight to be accorded to it is a matter for the Tribunal:  NAHI v Minister for Immigration [2004] FCAFC 10. In the absence of the applicant adverting to a claim or contention put before the Tribunal that was not considered, no jurisdictional error arises from the Tribunal not otherwise referring in its decision to the organisations referred to in her letter.

15. Further, no breach of s.424A of the Migration Act arises by not seeking the applicant's comment on any independent country information as that section of the Act does not apply to such information: Minister for Immigration v NAMW [2004] FCAFC 264; (2004) 140 FCR 572; VHAP of 2002 v Minister for Immigration [2004] FCAFC 82; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92.

16. Secondly, the applicant asserts apprehended bias.  There was nothing in the Tribunal’s reasons to indicate any apprehension of bias.  Having examined the transcript produced by the Minister, I am satisfied that the allegation of bias has no substance.  Indeed, it appears from the transcript that the Tribunal went to some trouble to explain its procedures to the applicant and, in particular, to explain the hearing process that the Tribunal would follow.  The applicant asserts that bias was evident from the first minute of the Tribunal hearing.  The transcript, from line 14 on page 4 through to line 11 on page 6, does not give any clue to anything that might support that assertion:

    MR O’BRIEN:   Thank you very much.  Ms [Applicant], let me tell you about the role of the tribunal.  First of all, I’m independent from the Department of Immigration and the decision that I make will be a fresh decision in relation to your application for a Protection visa.  I will take into account the information that’s in your Protection visa application, including the statement you made, all the information on the department file, and the information you give me today.  I have also read the submission you made when you made your application to the tribunal.  In taking account of all that material, however, I must apply the same law as the department, and I have no discretion to go outside the law. 

    Now, based on the all the information, I may end up agreeing with the department to refuse you a Protection visa, or I may send the matter back to the department telling them that, in my view, you meet the criteria for the visa.  I’ve been telling you these things so far with the help of the interpreter.  Have you been able to understand what the interpreter has been saying to you?

    [Applicant]:   Yes.

    MR O’BRIEN:   Okay.  Well, before I ask the hearing attendant to swear you in, I might just say a few things about you and I communicating through an interpreter.  Really, because it’s important that you and I understand one another as fully as possible, we’re using the services of a professional interpreter, who is bound by a code of confidentiality not to repeat outside this hearing room anything that the interpreter hears here today.  And how we will proceed today through the interpreter is that I will direct my questions and comments to you and if you direct your answers straight back to me and the interpreter will then interpret those questions from me and the answers from you.  And if you don’t understand anything clearly or you would like me to repeat something, please indicate that and I will repeat. 

    It’s important when we’re speaking through an interpreter to speak in short chunks so that the interpreter can interpret what is being said.  Okay.  Well, I think with that introduction I’ll now ask the hearing officer to swear you in.

    …

    MR O’BRIEN:   Thank you very much.  Ms [Applicant], I want to talk to you today about your application.  As I said before, I have had a chance to consider the Protection visa application you made to the department.  I’ve also considered the decision the department made and the submissions you provided with your application for review.  But today’s hearing really gives you the opportunity to put any information or any material you think is relevant to your case to me.  In the hearing today, I may ask you to comment on information that might be a reason for me to affirm or to agree with the decision that the delegate has made.  If I ask you to comment on any such information, it’s not because I’ve made up my mind at all about it;  it’s just that in order to be fair to you I need to give you an opportunity to comment on anything which might be adverse to your case.

    Let me now give you just a brief outline of the law relating to the grant of Protection visas.  A Protection visa is only given when it is found that the person applying for it is in need of protection by Australia, and I can only find that you are in need of protection if I find that you are a refugee.  Now, when I use the word “refugee” I use it in the same sense in which it’s used in the United Nations Convention relating to the status of refugees, and I think you have that definition in front of you in Mandarin, but it says that:

    A refugee is a person who fears persecution or serious harm if they are required to return to their own country.

    The definition also says that:

    The person’s fear must be well founded.

    That means that I have to be satisfied that you not only have fear of returning to China but that there is a well-founded basis for that fear, and the persecution you fear must be persecution that has an official quality about it, and by that I mean that it’s persecution by the authorities in China or by persons that the authorities are unable to control.  Finally, the definition says that

    The fear of persecution or harm must be for one or more than one of five possible reasons.

    And those reasons are you have fear because of your race, your religion, your nationality, membership of a particular social group or your political opinion.  Now, it’s important that you understand that definition because that’s the basic law that I have to apply to the circumstances of your case.  Do you have any questions at this point?

    [Applicant]:   No.

    MR O’BRIEN:   Okay, right.  Now, if you need a break at any time during the hearing this morning, please let me know and we can adjourn to give you a break.  And if you feel like it at any stage today, please help yourself to the water and the tissues in front of you.  Okay.  Now, could I just confirm a couple of things, Ms [Applicant].  I see from your application you were born in … – is that the pronunciation – … City in Shandon Province.  Is that right?

17. The applicant asserts that the Principal Member asked questions about things the applicant regards as irrelevant or of minor detail. It is apparent from the transcript that the Tribunal went to some trouble to seek more detailed information from the applicant about elements of her claims. There is nothing unusual in that. The delegate had already rejected the applicant’s claims on credibility grounds. It was appropriate for the Tribunal to test the detail of the applicant’s claims in order to determine whether the Tribunal should take a different view to that of the delegate. The applicant was also concerned that the Principal Member had apparently read her claims before the Tribunal hearing. That is not only unsurprising, indeed, as was pointed out by Mr Markus, for the Minister, the Tribunal needed to refer to the applicant’s claims in order to deal with its obligations pursuant to s.425 of the Migration Act.

18. The applicant suggested that there was something in the tone of voice of the Principal Member which suggested bias.  The applicant submitted that the Principal Member’s tone of voice suggested that he had already made up his mind.  I have not had the benefit of listening to the Tribunal’s hearing tape but even if, hypothetically, the principal member’s tone of voice was suggestive of doubt or disbelief, that would not itself point to a reasonable apprehension of bias.  The delegate had reasoned that there were inherent implausibilities in the applicant’s account.  The Principal Member may have come to the hearing with similar concerns.  It was appropriate, and probably necessary, for the Principal Member to test those concerns.  As I pointed out to the applicant, that was an important reason for the hearing. 

19. The applicant asserted that she was nervous at the Tribunal hearing and that the transcript does not reflect pauses in her responses to questions.  She also asserted that she was nervous in the hearing before me.  As I said in my response to her, her nervousness was not apparent to me, and any nervousness may not have been apparent to the Principal Member.  She nevertheless had the opportunity during the hearing to draw the Principal Member’s attention to any difficulties she may have had and the transcript does not record that she did so.  In other respects I agree with the Minister’s written submissions bearing on this ground of review.

20. With respect to the Tribunal's findings at [65]-[66] of its reasons for decision, the Tribunal raised with the applicant its concerns regarding her lack of supporting documentation (see transcript at pages 26-9, 33-4).  A fair-minded lay observer properly informed as to the nature of the Tribunal proceedings would not reasonably apprehend that the Principal Member did not bring an impartial mind to the proceedings:  Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [27]-[32]. An allegation of bias arising from prejudgment is one which must be “distinctly made and clearly proved”: Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; 205 CLR 507 at [69] per Gleeson CJ and Gummow J, at [127] per Kirby J. The applicant has not met this threshold and no jurisdictional error arises from this ground.

21. Thirdly, the applicant asserts error on the basis of the Tribunal’s reasoning that the applicant’s claims were not supported by documentary evidence.  It is not entirely clear what the applicant means by this ground, but the affidavit filed in support of her application indicates this ground may again be directed to the Tribunal's findings regarding the applicant's lack of documentary corroboration of her claims (RD 92 at [65]-[66], see [3] of the applicant's affidavit).  The applicant appears to assert that the Tribunal erred by not raising the importance of corroboration with her, nor providing her with a further opportunity to provide such documents. 

1. In her submissions the applicant asserted that she had not been told she needed documentary support and argued that such documentary support should not have been necessary.  It is true that a claim for protection might, hypothetically, succeed without any documentary support.  It is also true that a claim for protection may fail even if supported by a substantial number of documents.

2. As was pointed out by Mr Markus, the book of relevant documents records that the applicant was invited to supply documents in support of her claims at several steps in the decision and review process, and the importance of providing any documents she may have was emphasised.  The Tribunal did not accept the applicant’s explanation for her failure to have documents available to support her claims and the Tribunal’s finding on that issue was open to it for the reasons that it gave.  The applicant did not seek additional time in order to provide documents in support of her claims. 

3. The transcript reveals that the Tribunal clearly raised with the applicant its concerns regarding the absence of corroboration (see transcript at 26-9, 33-4) and gave her the opportunity of addressing its concerns.  At no point did the applicant request more time to provide documents to the Tribunal.  In his decision the Principal Member noted the need to be sensitive to the difficulties protection visa applicants may face in substantiating their claims and referred to the judgement of Beaumont J in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 regarding the need for a liberal attitude to proof of persecution and gave reasons for why it considered it was reasonable for this particular applicant to have had corroboration of her claims. Such findings were open to the Tribunal on the material before it and no jurisdictional error arises from these findings of the Tribunal.

4. It is apparent that the applicant does not wish to return to China and that she is generally concerned about the outcome of her protection visa application.  I confess some unease on the issue of the assessment of the credibility of her claims.  She does not strike me as an untruthful person.  It is possible that she is telling the truth when she says she made complaints about the use of child labour.  It is possible that someone threatened her following some process of investigation by the Chinese authorities.  Neither the delegate nor the Tribunal were persuaded that such possibilities were likely, but I do not rule them out.  Both the delegate and the Principal Member chose to place significance on the time that elapsed between the applicant raising her concerns about child labour and her receipt of threatening phone calls. There is no logical reason why the applicant would know what process of inquiry would follow from her complaint, how long it would take or at what stage in that process she would be placed at risk.  Nevertheless, the merits of the Tribunal decision are beyond the scope of this proceeding.  Any further consideration of the merits of the applicant’s claims is entirely a matter for the Minister. 

5. I find that the Tribunal decision is free from jurisdictional error.  It is, therefore, a privative clause decision and the application must be dismissed.  I will so order. 

6. The application having been dismissed, costs should follow the event.  The Minister seeks an order for costs fixed in the amount of $5,000.  The applicant did not wish to be heard on costs.  I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $5,000.

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

Date:  4 February 2011