SZQYM v Minister for Home Affairs

[2019] FCCA 490

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZQYM & ANOR v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 490

Catchwords:
MIGRATION – Administrative Appeals Tribunal – whether the Tribunal brought an independent and impartial mind to the determination of the matter on its merits – whether the Tribunal conducted the hearing in an aggressive, combative or highly prejudicial manner – whether the Tribunal’s adverse findings were logical, rational and open – whether the Tribunal had a real and meaningful engagement with the applicant’s claims and evidence – whether the Tribunal complied with its statutory obligations – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 91P, 424A, 476

First Applicant: SZQYM

Second Applicant: GCZ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3282 of 2018

Judgment of: Judge Street

Hearing date: 28 February 2019

Date of Last Submission: 28 February 2019

Delivered at: Sydney

Delivered on: 15 March 2019

REPRESENTATION

Solicitors for the Applicant: Mr C McArdle
McArdle Legal

Counsel for the Respondents: Ms R Francois

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 15 March 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3282 of 2018

SZQYM

First Applicant

GCZ18

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 30 October 2018 affirming a decision of the delegate not to grant the applications protection visas.

2. The first applicant is the mother and appointed litigation guardian of the second applicant. The second applicant was born in Australia in 2012 and the first applicant claims to be a citizen of the Democratic People’s Republic of Korea (North Korea) and to have arrived in Australia on 5 May 2011 on a false passport. The first applicant alleges that she is a Christian woman from North Korea and that she does not know any relevant fact about the identity of the father of the second applicant who she claims she only met in Australia.

3. The first applicant applied for protection, including the second applicant as a member of the family unit, on 30 May 2011. That application was found to be invalid pursuant to s 91P(2) of the Act on 7 November 2011. The Federal Court of Australia found there was insufficient evidence to apply s 91P of the Act and directed the Department to consider the protection visa application according to law.

4. The first applicant claims she was born in Hamgeungnamdo, North Korea and that she obtained North Korean citizenship by birth. The first applicant is not a dual citizen. The first applicant speaks, reads and writes in Korean and can also speak Chinese. The first applicant maintains that her ethnicity is North Korean and her religion is Christian. The first applicant asserts she has never been married or in a de facto relationship. The first applicant claims her father was born in China, however, his citizenship at birth was North Korean and it is alleged he currently resides in North Korea. The first applicant alleges her mother was born in North Korea and has North Korean citizenship and currently resides in North Korea. The first applicant alleges her siblings are North Korean citizens residing in North Korea, that she has a brother and two sisters.

5. The first applicant alleges that after schooling she worked as a teacher from October 1998 until August 2003 at a particular preschool. The first applicant alleges, after listening to South Korean programmes on the radio, and in particular about South Korean freedoms, she was called to the National Security Office where she was severely tortured for a week at which point she decided to run away to China.

6. The first applicant alleges that in October 2003, she walked across to China and that, from March 2004 till July 2006, she worked as a preschool teacher in China. The first applicant alleges she moved to another location in China where she remained until April 2011 and worked in a Korean restaurant. The first applicant alleges that she does not know how she entered Australia, although she arrived on 5 May 2011, and was very sick at the time of her arrival. The first applicant alleges a broker took her travel document.

7. The applicant claims to fear harm if returned to North Korea. On 30 November 2015, the delegate found the applicants failed to meet the criteria for the grant of protection visas.

8. The applicants applied for review to the Tribunal on 9 December 2015. The applicants were invited to attend a hearing before the Tribunal and appeared before the Tribunal to give evidence and present arguments on 18 October 2017 and on 20 April 2018.

9. The Tribunal identified the background to the application for review and expressly referred to the submissions made to the Tribunal as well as the two letters pursuant to s 424A of the Act sent to the applicants. The Tribunal noted that the birth certificate for the second applicant provided no details as to the father. The Tribunal referred to the submissions including a submission in respect of a Department record suggesting that the applicant SZQYN was the father of the second applicant.

10. The Tribunal did not accept that the first applicant or her child is a North Korean citizen. The Tribunal did not accept that the father of the child is an Australian citizen. The Tribunal referred to the first applicant’s assertion as to who the father of the child was and that they had a relationship for maybe two months and that she only met him three times. The Tribunal noted that at the second hearing the first applicant indicated that her father had been born in China. The Tribunal referred to the sending of a post second hearing letter and that there was no suggestion of a request for a further hearing.

11. The Tribunal did not accept that the first applicant is a truthful witness about her background or that relating to the birth of the second applicant. The Tribunal was not satisfied that the first applicant was a credible witness. The Tribunal identified having concerns about the first applicant’s inconsistent, not credible and changing evidence in relation to family and background details, past events of persecution and future fears.

12. The Tribunal referred to the first applicant having given inconsistent evidence about her parents’ place of birth at different times in the proceedings. The Tribunal first referred to the inconsistency in respect of the applicant’s evidence at the first hearing about her father. The Tribunal referred to concerns in respect of inconsistency in respect of the first applicant’s evidence about her father’s place of birth. The Tribunal referred to the issues raised in s 424A letters and in relation to the applicant’s claims about her fears while living in China for eight years.

13. The Tribunal found the applicant gave inconsistent and not credible evidence concerning her father being born in China and whether or not she had considered any rights this may have given her. The Tribunal found this undermined first applicant’s credibility.

14. The Tribunal referred to having concerns about the first applicant’s claims concerning her mother. The Tribunal also identified having concerns in respect of the first applicant’s inability to explain matters arising from her statement in respect of her knowledge of South Korea’s human rights and democracy.

15. The Tribunal was also concerned that the first applicant provided evasive, inconsistent and not credible evidence at the second hearing about her claims concerning approaching the South Korean embassy when she was in China. The Tribunal referred in that regard to the inconsistent evidence about the first applicant’s delay in approaching the South Korean embassy in China. The Tribunal identified having concerns about the first applicant changing and giving inconsistent evidence about her circumstances when she arrived in China.

16. The Tribunal identified having concerns in relation to the first applicant’s evidence about her attendance at church in China. The Tribunal also identified having concerns in respect of the first applicant’s inconsistent and changing evidence as to whether or not people knew or would know that she was from North Korea. The Tribunal also identified having a concern in relation to the first applicant’s evidence about the father of the second applicant in that she assumed he was South Korean.

17. The Tribunal referred to the first applicant’s evidence that she was recognisable by her accent in North Korea and expressly referred to the bringing to the second hearing before the Tribunal a witness being a pastor who gave opinion evidence about her being a North Korean. The Tribunal referred to inconsistent evidence about whether the first applicant’s accent was recognisable. The Tribunal also identified having a concern in respect of the first applicant’s lack of knowledge at the delegate’s interview compared with her knowledge shown thereafter.

18. The Tribunal also identified having a concern in relation to the applicant’s changing evidence about her Chinese language ability. The Tribunal also identified having concern as to the inconsistent and changing evidence in claims relating to the father of the second applicant and the paternity and nationality of the second applicant and the first applicant’s claims.

19. The Tribunal also identified having a concern in relation to the first applicant’s credibility. In relation to evidence concerning whether the first applicant was working, Tribunal was not satisfied the applicant is a witness of truth in relation to the claims made about herself and the second applicant. The Tribunal expressly referred to country information and a letter from Dr Lee and the letter from Dr Petrov, as well as a report from Professor Bluth, and made further reference to the evidence of the pastor. The Tribunal was not satisfied the first applicant is identifiable as a North Korean.

20. The Tribunal identified holding concerns about the applicant’s credibility that led the Tribunal to conclude that the first applicant is not a witness of truth and that the first applicant has fabricated accounts of events and claimed fears, upon which she has based her protection claims and those of the second applicant.

21. The Tribunal referred to a recusal request after the second hearing and addressed in detail why the Tribunal did not accept the grounds advanced for recusal. The Tribunal was not satisfied the first applicant is a North Korean citizen or national or that the first applicant nor that North Korea is the first applicant’s place of former habitual residence. The Tribunal found the first applicant has not been truthful about what she has been doing in Australia.

22. The Tribunal referred to the first applicant possibly being a Chinese citizen of ethnic Korean background. The Tribunal was not satisfied that even if the applicant is a Chinese national of Korean ethnicity, she faces a real chance of serious harm or real risk of significant harm if she was returned with the second applicant to China. The Tribunal was not satisfied the first applicant is a person in respect to whom Australia has protection obligations under the Refugees Convention.

23. The Tribunal found the first applicant does not satisfy the criteria under s 36(2)(a) of the Act. The Tribunal found that the first applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

24. The Tribunal was not satisfied the first applicant has been truthful about the second applicant’s paternity. The Tribunal found that the second applicant is the child of the first applicant. The Tribunal did not accept the second applicant is stateless. The Tribunal found there was a lack of credible information as to the second applicant’s nationality. The Tribunal did not accept the second applicant is a person in respect to whom Australia has protection obligations under the Refugees Convention and found the second applicant failed to satisfy the criteria under s 36(2)(a) of the Act.

25. The Tribunal referred to considering complementary protection and did not accept the second applicant is a national of North Korea or habitual residence of North Korea. The Tribunal did not accept that North Korea is the second applicant’s receiving country for the purpose of s 36(2)(aa) of the Act.

26. The Tribunal was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, there is a real risk the applicants will suffer significant harm.

27. The Tribunal found the applicants are not a persons in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 23 November 2018.

2. At the commencement of the hearing Mr McArdle, solicitor for the applicants, sought to read an affidavit of Ms Mary Anne Ford dated 15 February 2019, in addition to annexing transcripts of the two hearings of the applicants and the hearing of the applicant SZQYN. The affidavit of Ms Ford purported to make observations as to the conduct of the hearings before the Tribunal. The evidence of Ms Ford in relation to her opinion as to the conduct of the Tribunal was objected to by the first respondent and rejected by the Court on the grounds of relevance. The affidavit sought to tender was CDs and recordings of the hearings of the applicants and also the applicant SZQYN.

3. At the commencement of the proceedings the Court made orders that these proceedings be heard concurrently with matter SZYQN. The Court indicated to Mr McArdle that it would consider whether or not it should the recordings were relevant so as to be admitted into evidence and that the Court would listen to the best example of the recording that Mr McArdle contended identified the Tribunal member being aggressive, combative and the hearing being conducted in a highly prejudicial manner. Mr McArdle submitted that this could not be gleamed from the transcript.

4. Mr McArdle identified a large number of questions in the transcript of 20 April 2018 which he contended supported the characterisation of the hearing being one that was the subject of apprehended bias and/or a closed mind. The Court listened to almost an hour and three quarters of recording in respect of almost all the questions identified in the transcript of 20 April 2018 and the recording did not support the characterisation given by Mr McArdle. The Court was not satisfied the recordings were relevant as they were not probative of the existence of a fact in issue.

5. The recording listened to for the purpose of determining admissibility was only consistent with the Tribunal member conducting the hearing with an open mind reasonably capable of persuasion as to the merits and did not support the alleged relevance. None of the questions as reflected by the recording provide any basis to advance the assertion of relevance that the Tribunal member acted aggressively, in a combative manner or in a highly prejudicial manner. The contention that it was necessary to listen to the recordings to identify the alleged conduct was not supported by the recording played to the Court and the Court rejected the same as not being relevant. The Court has considered the whole of the transcript of 20 April 2018, as well as the whole of the transcript of the earlier hearing on 18 October 2017. The contents of those transcript identify on more than one occasion the Tribunal member identifying that she had not made her mind up. The content of the transcripts do not support any basis for asserting that the hearings were conducted otherwise than with an open mind reasonably capable of persuasion as to the merits. The transcripts do identify the testing of evidence which was a proper function before the Tribunal and do not support any finding of the Tribunal being aggressive, combative, or the hearing being conducted in a highly prejudicial manner.

6. The Court has also taken into account the content of the transcript in respect of SZQYN. The Court is satisfied on the transcript evidence before the Court that the applicant SZQYN had a real and meaningful hearing and that the Tribunal complied with its statutory obligations in the conduct of the review. After listening to the recording of 20 April 2018, in respect of almost all the questions identified said to support the reason why the recordings should be tendered, the Court was not satisfied that the recordings provided any evidentiary support at all for the characterisation of the Tribunal being aggressive, combative and highly prejudicial. The Court is satisfied there is no probative value in the recordings and the recordings are not capable of rationally affecting, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.  In these circumstances, the Court was not satisfied that the recordings were relevant and the tender of the CDs and the USB in respect of the recordings was rejected.

Adjournment application

1. An adjournment application by an application in a case was made by the applicants on the basis of the fact that the CDs had corrupted after being transcribed and that the applicants had recently received a USB version of the recording. The Court notes that orders were made in respect to these proceedings commenced on 23 November 2018 for the filing of an amended application, affidavit evidence and submissions.

2. The affidavit of Ms Ford was filed one day after the time period identified in that regard. The Court is satisfied that the transcripts are as asserted in the affidavit substantially correct. The Court also took into account the submissions filed on behalf of the applicant in support of ground 2 in the originating application, but no written submissions were advanced in relation to grounds 1 and ground 3, and the Court took into account the want of merits in relation to the substantive ground.

3. The adjournment was opposed by the first respondent. The Court was not satisfied that an adjournment was warranted in the interest of the administration of justice, and it is for these reasons the Court dismissed the application in a case.

The grounds

1. Grounds in the application are as follows:

   1. That it was not at law a competent decision under the Act.

   Particulars

   i. Section 5E

   ii. Transcript and evidence.

   2. That The Tribunal's Decision was encumbered by characteristics which would lead a reasonable person to apprehend bias, and was thus not an effective decision that is protected by Section 474.

   Particulars

   i. In the course of the hearing, the Tribunal Member made the unfounded and outrageous finding that the father of the second applicant was SZQYN, whose hearing was also heard by Ms Cody. SZQYN is a person unknown to the first applicant, other than in so far as he has the same lawyer, and his Federal Court matter was considered together with hers.

   ii. The Tribunal disregarded the explanation that this talk of paternity arose from a notation error by officers of the Department.

   iii. The Tribunal simply refused to accept any evidence presented by the Appellants.

   iv. The Tribunal had before it no new evidence before it, contrary to the Appellant's case, different to the evidence before the Federal Court in the proceedings referred to below.

   v. The Tribunal interrupted and disrupted the evidence of the Appellant with no apparent usefulness other than to intimidate the Appellant. The Appellant was called back for two hearings, the second of which was clearly for the purpose of 'closing off' any evidence advantageous to the Appellant.

   vi. Without evidence, the Tribunal made the baseless finding that the Appellant had been "coached" or had "studied" before meeting country experts. That was not put in the hearing, but stated in the Decision.

   vii. The Tribunal member disregarded a considered submission that she disqualify herself on the grounds of reasonably perceived bias.

   3. The Tribunal breached Section 424.

   Particulars

   i. The Tribunal was provided with and had before it, but then purported to dispute and override the Judgment of the Federal Court of Australia made on 1 May 2014 in Matters numbered NSD 5/2013 and NSD 6/2013. This decision of the Tribunal contradicts that Judgement, despite the fact that the evidence before both, to the extent that it was adverse to the Applicant's case, was identical.

   ii. The Tribunal was provided with and had before it all of the evidence that the Federal Court had had before it, but then ignored that evidence, and found that the Applicant was "not north Korean". According to the Tribunal, on the basis of no evidence, the Applicant was "possibly Chinese".

   4. Such other grounds as this Honourable Court deems fit.

Ground 1

1. In relation to ground 1, there are no written submissions in support of this ground, and Mr McArdle submitted that this ground would only succeed if ground 2 or ground 3 succeeded. For the reasons that follow, the Court is satisfied that neither ground 2 or ground 3 can succeed. Accordingly, ground 1 fails to make out any jurisdictional error. Further, the Court is satisfied, on the face of the material before the Court, that the Tribunal conducted a review as required under the statute. Ground 1 fails to make out any jurisdictional error.

Ground 2

1. In relation to ground 2, for the reasons already given, the transcripts do not identify any conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent or impartial mind to the determination of the matter on its merits. Further, the transcripts support the conclusion that the Tribunal conducted the review with an open mind reasonably capable as to persuasion on the merits.

2. In relation to the submissions concerning the father of the second applicant, the Tribunal did not make a finding that SZQYM was the father of the second applicant. The Tribunal’s reference to the submissions and credibility concerns in respect of the first applicant’s evidence, in respect of the father of the second applicant, were logical, rational and did not give rise to any basis by which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to determine the actual matter on its merits.

3. The first applicant’s characterisation that the paternity arose from an erroneous notation entirely fails to recognise the inadequacy identified by the Tribunal in respect of the first applicant’s evidence. It was logical, relevant and reasonable for the Tribunal to make adverse credibility findings, taking into account the first applicant’s failure to identify the father of the second applicant. The assertion that the Tribunal refused to accept any evidence presented by the applicants is incorrect and an overstatement. It is apparent on the face of the Tribunal’s reasons that the Tribunal had a real and meaningful engagement with the applicants’ claims and evidence and made adverse findings as summarised above that were open to the Tribunal for the reasons given by the Tribunal. Those reasons were logical and rational.  

4. The proposition that the Tribunal had no new evidence contrary to the evidence that was before the Federal Court of Australia misunderstands the task that the Tribunal is required to undertake. The Federal Court of Australia decision did not determine the issue of whether the applicants met the criteria under the Refugees Convention or complementary protection. Nor did the Federal Court of Australia decision determine the nationality or country of reference of the applicants.

5. The transcript of 20 April 2018 does not support the assertion that the Tribunal interrupted the evidence of the applicant. The proposition that there were interruptions to intimidate the applicant is entirely unsupported on the face of the transcripts.

6. The Tribunal giving the applicants a further hearing is not conduct that identifies any basis upon which a fair-minded lay observer might reasonably apprehend the Tribunal might not bring an independent, impartial mind to the determination of the merits. The proposition that the second hearing was to close off advantageous evidence to the applicants is not supported by the content of the transcript and has no proper foundation.

7. The proposition that the Tribunal made a finding that the applicant had been coached or studied before meeting country experts was not the finding made by the Tribunal. Rather, the Tribunal identified the knowledge of the applicant had improved. That reasoning was open and relevant to the Tribunal and does not identify any improper basis by reason of which the Court should find that the Tribunal did other than conduct the review with an open mind capable of persuasion as to the merits.

8. In relation to the Tribunal member’s rejection of the disqualification application, it is apparent that the Tribunal member gave careful consideration to the content of the application and gave detailed reasons in support of rejecting the reason why it was advanced that the Tribunal member should be recused. The Tribunal was, on the face of the material before the Court, correct to refuse the recusal requests. The applicants have not identified any passage of the transcripts which indicate pre-judgment, and the Court has examined the whole of the transcripts in relation to ground 2. No aspect of the Tribunal’s conduct in the present case on the evidence before the Court supports the assertion of pre-judgment. No case of apprehended bias is made out. Ground 2 fails to make out any jurisdictional error.

Ground 3

1. In relation to ground 3, the Court notes that there appears to be an erroneous assumption that the Tribunal was bound by the decision of the Federal Court of Australia in respect of the outcome of the Refugees Convention and complementary protection. The Tribunal was correct in determining the review on the material before the Tribunal. It was open to the Tribunal to make the adverse finding in relation to the applicant’s nationality, citizenship and the country of reference for the reasons given by the Tribunal as summarised above. No jurisdictional error as alleged in ground 3 is made out.

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 15 March 2019