SZOWK v Minister for Immigration - [2011] FMCA 184

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOWK v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 184

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 424A; 424A(1); 424A(3); 425; 474; pt.8 div.2

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407;
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668;
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507;
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425;
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264;
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10;
Abebe v Commonwealth of Australia (1999) 162 ALR 1;
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259

Applicant:

SZOWK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2741 of 2010

Judgment of:

Emmett FM

Hearing date:

21 March 2011

Date of Last Submission:

21 March 2011

Delivered at:

Sydney

Delivered on:

21 March 2011

REPRESENTATION

Applicant appeared in person with the assistance of a Mandarin interpreter

Solicitors for the Respondent:

Mr J. Pinder DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2741 of 2010

SZOWK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated and handed down on 26 November 2010.
The applicant claims to be a citizen of the People’s Republic of China (“the Applicant”) and fears persecution from authorities in China by reason of his instigation of anti-government and anti-communist protests in Yicheng City.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and a summary of the Tribunal’s review and decision.

Background

The Applicant arrived in Australia on 11 February 2010 illegally from China on a false passport issued and a Visitor visa issued under a false name.
On 11 May 2010, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 4 August 2010, the Delegate refused the Applicant’s application for a protection visa.
On 1 September 2010, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 26 November 2010, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 20 December 2010, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

In his protection visa application, the Applicant claimed that he feared persecution by Chinese authorities.
The Applicant claimed to be employed at a paper company business in Yicheng City owned by a relative.
The Applicant claimed that on 9 December 2009, he saw his assistant killed by four young men, including the nephew of the Vice Minister of the Public Security Ministry in Hubei Province.
The Applicant claimed that the attackers were arrested by the Public Security Bureau and were released after one week.
The Applicant claimed that on 27 December 2009, he organised 60-70 people including employees from the paper company to protest in Yicheng City in order to instigate a proper investigation into the death of his assistant and to inform the public of the corruption of the Vice-Minister of the Public Security Ministry.
The Applicant claimed that, following the protest, he was arrested with others for his involvement in organising the anti-government and anti-communist protest.
The Applicant claimed he was detained and mistreated. He claimed that his parents bribed officials to take him to hospital from where he escaped.
The Applicant claimed that he left Yicheng City. He claimed that after he left, police had gone to his hometown to arrest him and his family and friends were subjected to investigation.
The Applicant claimed that on 8 February 2010 he escaped from China on a false passport with assistance of a friend. He claimed to be on the Public Security Bureau’s (“PSB”) ‘black list’.

The Delegate’s decision

On 2 August 2010, the Applicant attended an interview with the Delegate.
On 4 August 2010, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Delegate was not satisfied of the Applicant’s claims on the material before it. Further, the Delegate noted that the Applicant arrived in Australia on a false passport on 11 February 2010, but did not apply for a protection visa until 11 May 2010, being the day that the false visitors visa was due to expire.

The Tribunal’s review and decision

On 1 September 2010, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 16 September 2010, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 26 October 2010 to give oral evidence and present arguments.
On 26 October 2010, the Applicant attended the Tribunal hearing and gave evidence.
On 28 October 2010, the Tribunal wrote to the Applicant identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment upon it (“the s.424A Letter”).
On 11 November 2010, the Applicant responded to the s.424A Letter.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by the solicitor for the First Respondent in his written submissions as follows:
“7. The RRT did not accept the applicant's claims (see [62]-[63]). It found the applicant's account of his experiences in China to be highly lacking in credibility and found important aspects of his evidence were inconsistent with his written statement (at [55]). The RRT detailed its reasons for so finding.
7.1 In light of its findings, and independent country information, the RRT did not accept that an arrest certificate, summons and household registration document submitted by the applicant were genuine documents and did not accept that they contained truthful information (at [62]).”

The proceeding before this Court

The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 9 February 2011, the Applicant attended a directions hearing before me. I explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal. I also explained to the Applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court. The Applicant confirmed that he wished to continue with the application. The Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing.
At the directions hearing, the Applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The Applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. The Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
At the commencement of the hearing, the Applicant confirmed that he had not filed any amended application or evidence in support of his application and that he had no further documents to present to the Court this morning in support. On 15 March 2011 the Applicant filed written submissions in support of his application.
The Applicant confirmed that he relied on the grounds contained in the application filed on 20 December 2010 as follows:
“1. The Tribunal failed to consider my evidence properly and fairly. The Tribunal’s decision has included a reasonable apprehension of bias; and the Tribunal made its finding based on its unwarranted assumption. I have never believed that my review application ha been fairly and carefully assessed by the Tribunal.
2. The Tribunal failed to comply with her obligation under s.424A(1) of the Act.
3. The Tribunal has failed to comply with her obligations under s.425 of the Act.”
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of his application generally.

Ground 1

At the heart of the Applicant’s complaint in ground 1 was the use made by the Tribunal of information before it about the similarity of two other protection visa applicants with claims made by the Applicant and with whom he lived.
The Tribunal noted that it asked the Applicant whether he knew the names of the two women whom he lived with in Australia, and noted the Applicants response that he did not and that they do not discuss each other’s circumstances.
The Tribunal put to the Applicant that one of the women arrived in Australia on a false passport and had taken exactly the same route as the Applicant in order to leave China. The Tribunal accepted the Applicant’s response that there are many routes out of China. However, the Tribunal put to the Applicant that it appeared “remarkably coincidental” that this woman with whom he lives in Sydney and claims not to know, also left China using the same route that he had used to leave China. The Tribunal noted the Applicant’s response that he did not know anything about that.
Following the Tribunal hearing, the Tribunal gave to the Applicant information in writing by letter, dated 28 October 2010, in accordance with s.424A of the Act. The letter gave particulars of the information as above and also stated that the Applicant had been refused a visitor’s visa in China in early December 2009.
The letter informed the Applicant that the Tribunal may find that he had not been truthful in relation to his denial of knowledge about the names and circumstances of the women with whom he lived. It put to him that his denial was indicative of the fact that he had obtained a false passport and fabricated refugee claims after he was refused a visitor’s visa in China.
The Tribunal also gave to the Applicant information that caused it concern about his statement to the Delegate, that he did not know the post code of the company where he worked. The letter informed the Applicant that the information may cause it to find that the Applicant does not have a well founded fear of persecution in China. The letter invited the Applicant to respond.
On 11 November 2010, the Applicant’s migration agent sent to the Tribunal a statutory declaration made by the Applicant on 11 November 2010 seeking to respond to the Tribunal’s s.424A letter.
Ultimately, the Tribunal was not satisfied by the Applicant’s responses to its concerns. It found his evidence to be lacking in credibility and inconsistent. The Tribunal was not satisfied that the Applicant was a truthful witness and found that he had fabricated his claims to fear harm in China for the reasons alleged.
Further, the Tribunal did not accept that he Applicant did not know the name of the woman with whom he lived or anything about her prior to the Tribunal hearing. The Tribunal did not accept that it was credible that the Applicant and this woman, both living at the same address in Sydney and from the same province in China would not at some point have had some discussions about the woman’s name and her circumstances.
Moreover, the Tribunal did not accept that it was coincidental that the Applicant and the woman both lived at the same address in Sydney, lived in the same area in China, arrived on false passports and departed China using the same route. The Tribunal found those matters to be “beyond coincidental”.
The Tribunal summarised in some detail the Applicant’s responses to its concerns, including the response to the Tribunal’s s.424A letter. The Tribunal found that both the Applicant and the woman with whom he lives in Sydney, also a refugee applicant before the Tribunal, also used false passports and departed China using the same route, and that the Applicant denied knowledge of this woman and her circumstances. The Tribunal found the coincidences to be such that it rejected the Applicant’s denial of knowledge of the woman and her circumstances.
The Tribunal rejected comprehensively all the Applicant’s claims of past harm in China. The Tribunal found that, having been refused a visitor’s visa in his own name in China, the Applicant acquired a false passport containing a visa in order to enter Australia. The Tribunal also found that fraudulent documents are common in Fujian Province in China and easily obtained, according to independent country information before it.
The Tribunal did not accept that the Applicant obtained a false passport and left China because he feared harm for the reasons he claimed. The Tribunal found that the Applicant left China for reasons entirely unrelated to his claims and was not satisfied, in the circumstances, that the Applicant has a well founded fear of persecution in China for any Convention related reason.
The Tribunal’s findings were open to it on the material and evidence before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
To the extent that ground 1 alleges bias by the Tribunal against the Applicant, such a claim is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the Applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
The Applicant was directed on 9 February 2011 by this Court to file and serve any affidavit containing additional evidence to be relied upon, including the transcript of the hearing, by 2 March 2011. The Order informed the Applicant that evidence of a Tribunal hearing was to be presented as a transcript verified by affidavit and that if he wished to rely on a tape recording of the Tribunal hearing, he needed to give notice by 2 March 2011. No evidence was filed by the Applicant in accordance with those directions or otherwise. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind to bear in determining the application for review (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
Accordingly, the allegation of bias or apprehended bias is rejected. Further, the Applicant’s assertions in ground 1 that the Tribunal failed to consider his evidence properly and fairly and made its finding based on an unwarranted assumption are not made out.

Ground 2

Ground 2 makes the bare assertion that the Tribunal failed to comply with s.424A(1) of the Act. The assertion was not supported by particulars, evidence or submissions.
The Tribunal gave to the Applicant in writing, in accordance with s.424A(1) of the Act, information that may be the reason or part of the reason for affirming the decision under review. Otherwise, the Tribunal rejected the Applicant’s claims based on the unsatisfactory nature of the Applicant’s evidence and its adverse credibility findings. This information was given to the Applicant for the purpose of his review application or given by the Applicant during the process that led to the decision under review, other than such information that was provided orally by the Applicant to the Department. Such information does not enliven any obligation under s.424A(1) of the Act by reason of s.424A(3)(b) and s.424A(3)(ba).
Further, the country information to which the Tribunal had regard was not information specifically about the Applicant and was just about a class of person of which the Applicant claimed to be a member. Such information is excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(a) of the Act. Otherwise, the country information to which the Tribunal had regard and the weight it gave such information is a matter for the Tribunal. NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] per the Court (Gray, Tamberlin and Lander JJ)

Accordingly, ground 2 is not made out.

Ground 3

Ground 3 makes the bare assertion that the Tribunal failed to comply with s.425 of the Act. The assertion was not supported by particulars, evidence or submissions. It is clear that the Applicant was invited to attend a hearing with the Tribunal, which he did.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence, both orally and in writing, and considered the Applicant’s responses. The Tribunal also put to the Applicant independent country information before it about the easy access to fraudulent documents in China. The Tribunal also identified the independent country information to which it had regard. The Tribunal then made findings based on the evidence and material before it. As stated above, those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime, including s.425 of the Act, in the making of its decision, including the conduct of its review.
Accordingly ground 3 is not made out.
The Applicant’s submissions in support of his application before this Court, both oral and in writing, are more in the nature of complaints about the Tribunal’s findings and conclusions. Such complaints invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 21 March 2011