SZQYN v Minister for Home Affairs

[2019] FCCA 489

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZQYN v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 489

Catchwords:
MIGRATION – Administrative Appeals Tribunal – whether the Tribunal conducted the review according to law – whether the Tribunal brought an independent and impartial mind to the determination of the matter on its merits – whether the Tribunal’s adverse findings were open to it on the material before the Tribunal – whether the Tribunal had a real and meaningful engagement with the applicant’s claims and evidence – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: SZQYN

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3281 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 3281 of 2018

SZQYN

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 applicant a Protection (Class XA) visa.

2. The applicant claimed to be a citizen of the Democratic People’s Republic of Korea (North Korea) and was found to have arrived in Australia on 29 March 2011. The applicant claimed to have no identity documents. The applicant applied for protection on 20 April 2011 and on 30 November 2015, the delegate found the applicant failed to meet the criteria for the grant of a Protection visa.

3. The applicant claimed to fear harm because he is a North Korean citizen and feared harm if he was returned to North Korea. The applicant left North Korea on 30 January 2003 for China and allegedly returned to North Korea on 16 August 2005 and then returned to China from North Korea on 4 September 2005 and then left China arriving in Australia on 29 March 2011.

4. The applicant claimed that he had a fraudulent Chinese passport which he used to travel to Australia and that the group leader who accompanied the applicant collected the fraudulent papers. The applicant claimed that he left North Korea because he wanted basic human rights and that he remained in China unlawfully until he departed and returned to North Korea, having been arrested in China on 9 August 2005. The applicant contended that around 3 October 2007, he intended to go to South Korea but was arrested by Chinese police and that the policemen were sympathetic and allowed him to escape. The applicant alleged he worked in China whilst there from January 2003 until March 2011. The applicant maintained he would be killed if returned to North Korea and he would be regarded as a traitor for having left his country.

5. The background to the application for review in the Tribunal’s decision identifies that there had been Federal Court of Australia proceedings on 3 June 2011 and the Court determined that there was not sufficient evidence for s 91P of the Act to apply and that the Department must consider the applicant’s application for protection according to law.

6. Following the delegate’s adverse decision on 30 November 2017, the applicant applied for review on 9 December 2015. By a letter dated 21 September 2017, the applicant was invited to attend a hearing on 20 October 2017. The applicant appeared on that date to give evidence and present arguments.

7. The Tribunal gave detailed reasons that reflected a consideration of the whole of the applicant’s claims and evidence. The Tribunal’s reasons identified engaging with the submissions and the evidence that had been adduced and did not accept the submission that the Tribunal was not permitted to receive further evidence in relation to the identity of the applicant and whether he was a South Korean citizen. The Tribunal did not accept that the applicant is a North Korean citizen.

8. The Tribunal identified detailed reasons for not being satisfied that the applicant was a credible witness in respect of his assertion that he is a North Korean citizen. The Tribunal, in that regard, referred to the changing evidence of the applicant concerning his father’s place of birth. The Tribunal also identified being concerned with the applicant’s inconsistent evidence as to the reason why he claimed in his written materials that his father was born in North Korea. The Tribunal also found the applicant gave inconsistent evidence about his knowledge of his grandfather. The Tribunal identified having concern about inconsistent evidence by the applicant as to the knowledge of where his mother was born.

9. The Tribunal identified having concern in relation to the applicant’s inconsistent evidence about his exposure to the Chinese language and, in particular, the inconsistency that he had first been exposed to the language when he went to China in 2003 and his evidence that his father used to speak to him in Chinese. The Tribunal identified concern in relation to how the applicant had changed his evidence about the details of his claims in response to the Tribunal’s questions. In that regard, the Tribunal identified reasons for concern in relation to what the applicant alleged the Chinese authorities said to him when he was detained as well as in relation to the alleged questions by the North Koreans when he had been repatriated from China as well as the changing evidence in respect of the applicant’s intention to travel to South Korea.

10. The Tribunal also referred putting to the applicant adverse information pursuant to the s 424A letter, in which the applicant alleged another applicant, SZQYM, was his wife and had given birth to a child which is yet to be registered. The Tribunal referred to the response and did not accept the proposition as there is no evidence that the applicant is the father of SZQYM’s child. The Tribunal found that the changing evidence of the applicant in this regard indicates that he is not a witness of truth.

11. The Tribunal also referred to having concerns in respect of the applicant’s knowledge of North Korea and referred to country information. The Tribunal in that regard took into account the way the applicant speaks Korean and expressly referred to evidence from Dr Lee and Dr Petrov, as well as evidence concerning the applicant’s physical features. The Tribunal also expressed concern that there were inconsistencies with the applicant’s family background in relation to his parents and grandparents and that he gave inconsistent evidence about a sister. It was in those circumstances, the Tribunal was not satisfied the applicant is a witness of truth in relation to his claims.

12. The Tribunal also referred to putting to the applicant, pursuant to s 424A of the Act, information that the applicant may have been part of a group of persons fraudulently claiming to be North Korean and the Tribunal identified that it was not prepared to place weight on the Department’s assertion and, accordingly, did not accept that the applicant was part of an organised group of people claiming to be North Korean.

13. The Tribunal referred to the applicant’s evidence and submissions advanced on behalf of the applicant. The Tribunal expressly addressed the expert evidence and country information including the letter of Dr Lee and the letter of Dr Petrov. The Tribunal found that the evidence of the experts supported a finding that the applicant is of Korean ethnicity but, given the concerns with the applicant’s evidence, the Tribunal was not satisfied the applicant was born and raised in North Korea as claimed.

14. The Tribunal also referred to the evidence of Professor Bluth but did not give weight to that opinion given the adverse credibility findings. The Tribunal held that the applicant is not a witness of truth and that the applicant has fabricated accounts of events and claimed fears upon which he has based his protection application. The Tribunal found the applicant has not been truthful about his background or his parents or family background and that he has made up claims to be a North Korean who escaped to China.

15. The Tribunal referred to a submission inviting the Tribunal to recuse itself in response to the s 424A letter and found that the applicant had had a fair opportunity to present arguments and evidence and did not accept the contention that the applicant had been denied procedural fairness. The Tribunal referred to one of the reasons for the proposed recusal being the alleged prejudicial step of running the applicant’s case separately from the case of SZQYM & Anor and that it was not possible to fathom why they should not have been heard together. The Tribunal identified communications with the applicants’ representatives in both matters in which it was acknowledged that there was no suggestion that the two matters should not be heard together.

16. The Tribunal noted the second ground for recusal appeared misguided in relation to the effect of the Federal Court’s judgment. The Tribunal correctly identified that it was required by the review to consider whether the applicant meets the criteria for the grant of the visa and to make the findings on the basis of the evidence before it.

17. The Tribunal referred to the third reason for recusal being the alleged “presentation of constantly renewed research and of other material aimed at thwarting the applicant”. The Tribunal identified presenting evidence and information to the applicant as part of its duties of procedural fairness.

18. The Tribunal also referred to a proposition that the information in the s 424A letter reflected the Tribunal being involved in “energetic” searching of records “to find inconsistency, no matter how minor”. The Tribunal did not accept those assertions and the Tribunal noted that it was not denied that there were, in fact, inconsistencies on the evidence as well as an omission which the applicant’s agent asserted was her fault.

19. The Tribunal also referred to an assertion in support of the request for recusal in respect of the name by which the applicant had been known and it was suggested that raising the concern of the s 424A letter leads to apprehended bias on the part of the Tribunal. The Tribunal disagreed with that proposition and identified having an obligation to put the information in accordance with s 424A of the Act to give the applicant an opportunity to comment or respond.

20. The Tribunal referred to a later request for it to recuse itself and identified believing that it had brought a fair and impartial mind to the determination of the review.

21. The Tribunal did not accept that the applicant was a witness of truth in relation to the majority of the matters relevant to his claims and background and, in particular, that the applicant was born and raised in North Korea. The Tribunal was not satisfied the applicant is a North Korean citizen or national and found that North Korea is not the applicant’s place of former habitual residence.

22. The Tribunal was prepared to accept that the applicant is an ethnic Korean and that he has resided in China for a significant period of time. The Tribunal found that North Korea is not the applicant’s country of nationality or his place of former habitual residence. Given the lack of credible information before the Tribunal, the Tribunal was not able to make a positive finding on the applicant’s nationality.

23. The Tribunal noted that the applicant’s claims in relation to both South Korea and China were predicated upon him being a North Korean national, which the Tribunal did not accept. The Tribunal expressly found that, on the evidence before it, if the applicant was a national of either South Korea or China, the applicant does not face a real chance of serious harm or real risk of significant harm if returned to either of these countries, having noted that the applicant does not claim to be stateless.

24. The Tribunal was not satisfied the applicant is a person in respect for whom Australia has protection obligations under the Refugees Convention. The Tribunal was satisfied that the applicant fails to meet the criteria in s36(2)(a) of the Act.

25. The Tribunal considered the complementary protection criteria and did not accept that North Korea is the applicant’s receiving country for the purpose of s 36(2)(aa) of the Act.

26. The Tribunal noted that the applicant only made claims in relation to North Korea by way of nationality. The Tribunal was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk the applicant will suffer significant harm.

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

Before this Court

1. At the commencement of the hearing in dealing with evidence Mr McArdle, solicitor on behalf of the applicant, sought to rely upon an affidavit of Mary Ann Ford dated 15 February 2019, which did not merely annex the transcript but also sought to make comment and express opinion as to the nature of the hearing. Mr McArdle requested the Court to listen to the whole of the recording of the transcript in both this matter and in SZQYM & Anor. The Court, at the commencement of the hearing, made an order that the proceedings in this matter be heard concurrently with the proceedings in SZQYM & Anor.

2. The Court made evidentiary rulings in respect to the affidavit of Ms Ford and accepted the first respondent’s objections in respect of the witness’ views as to the conduct of the hearing and the impartiality of the Tribunal. The Court did accept into evidence the transcripts.

3. The Court indicated that it would consider the question as to whether or not it should hear the recordings and accept the same into evidence unless satisfied as to relevance. In that regard, Mr McArdle indicated to the Court that the recordings disclosed that the Tribunal had conducted itself in an aggressive, combative and highly prejudicial manner. When requested to identify, by reference to a specific transcript, the questions that would support the assertions in respect of how the Tribunal had conducted itself which could not be gleaned from the transcript in order to establish relevance Mr McArdle referred to the transcript in SZQYM & Anor dated 20 April 2018, and relevantly to questions 39, 56, 60, 61, 63, 64, 68, 70, 71, 72, 92, 114, 115, 116, 117, 118, 119, 128, 129, 130 to 150, 152, 251, 307, 308 to 312, 319 to 335.

4. The Court indicated that it would commence playing the recording in respect of those questions to determine relevance and whether or not the Court would listen to the whole of the recordings or accept into evidence the whole of the recordings. The Court listened to the whole of the transcript up to question 152 and then the whole of the recording from question 307 and the end of the recording for 20 April 2018, subject to relevance.

5. Contrary to the submissions advanced by Mr McArdle, there was nothing in the recording to support the contention that the Tribunal had conducted itself in an aggressive, combatant or highly prejudicial manner. Nor were the content of the questions in the transcript that were referred to supportive of a closed mind or unfair prejudice in the conduct of the hearing. The Tribunal in the recording of SZQYM & Anor conducted on 20 April 2018, on more than one occasion identified not having made up its mind in the transcript. The transcript for that hearing was consistent with the Tribunal testing the evidence of the first applicant in SZQYM & Anor. Having listened to an hour and three-quarter recording, the Court was not satisfied that the recording was relevance and decided it was not to accept into evidence the recordings of the hearings in the matter SZQYM & Anor or SZQYN on the grounds of relevance. The recordings listened to by the Court did not support the recordings as being probative to the assessment of a fact in issue.

6. Mr McArdle was given the opportunity to identify any questions in the transcript of SZQYN specifically said to support the allegation of bias. The Court has considered all the questions to the applicant on the transcript.  

7. The Court has read the whole of the transcript of the evidence given by the applicant that was annexed to the affidavit of Ms Ford. That transcript of 20 October 2017 identified 296 questions. The Tribunal member on the transcript said on more than one occasion that it had not made up its mind. The transcript was consistent with the Tribunal testing the applicant’s evidence but does not support a closed mind. There was nothing on the face of the transcript to support the contention that the Tribunal conducted the hearing with other than an open mind, reasonably capable of persuasion as to the merits.

8. Following the listening to the oral tape of the hearing of 20 April 2018 in the matter of SZQYM & Anor, the Court rejected the tender of the CDs annexed to the affidavit of Ms Ford and rejected the tender of the USB recordings, as the Court was not satisfied that the recordings were relevant. None of the questions identified by Mr McArdle in respect of the recording of 20 April 2018 supported an aggressive, combative or highly prejudicial conduct of the hearing by the Tribunal member. 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.   The Court was not satisfied, in those circumstances, as a matter of relevance that the Court should listen to or should accept into evidence the recordings.

9. Mr McArdle then sought an adjournment for the purpose of listening to an USB version of the recording in relation to the applicant, as it was alleged that the CD recording was corrupted after it had been transcribed.

10. The Court in this matter had made orders for the filing of affidavit evidence and submissions by 10 January 2019. Those orders were by consent and provided an opportunity for the applicant to file any amended application by 4 February 2019 and also provided the applicant an opportunity to provide affidavit evidence, including any transcript of hearing, on or before 4 February 2019.

11. On 5 February 2019, by consent the Court extended the time for the filing of the applicant’s amended application and evidence, including any transcripts of the Tribunal hearing, and written submissions up to 14 February 2019. The Court is satisfied that the applicant had a real and meaningful opportunity to put on evidence and any amended application.

12. The Court does not accept that the receipt of the USB recording, more recently as identified in the affidavit of Leonard Keith Leerdham dated 20 February 2019, identifies a proper basis upon which a further adjournment should be granted. The applicant in fact filed affidavit evidence annexing the transcript of the hearing one day after the time for filing affidavit evidence in the consent orders made on 5 February 2019.

13. The Court is not satisfied that there would be any utility by the granting of an adjournment in the circumstances of the present case. Further in that regard, the Court takes into account the order that was made at the commencement for the concurrent hearing and that the grounds in these proceedings are in substance identical to the proceedings in SZQYM & Anor, and that the argument in support of apprehended bias is substantially the same. The Court also took into account, in this regard, the submissions that have been filed by the applicant and the lack of merit in the grounds identified in the application. This Court is not satisfied an adjournment is warranted in the interests of the administration of justice.

1. It is for these reasons that the Court rejected the application for an adjournment, which had been supported by an application in a case in the affidavit filed in the proceedings SZQYM & Anor. The substance of the ground in support of the adjournment was to listen to the USB recording in respect to the hearing of the applicant. The Court is of the view that the applicant has already had an adequate opportunity to adduce evidence in respect of the recording and given the existence of the transcript the Court does not accept that the corruption of the CD, subsequent to transcription, is in the circumstance of the present case a proper ground for adjourning the proceedings.

The grounds

1. The 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 inference that the Applicant was the father of one the second applicant in matter SZQYM, the son of SZYQM, whose hearing was also heard by Ms Cody. SZQYM is a person unknown to the Applicant, other than in so far as she has the same lawyer, and her 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, about this or any other matter.

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

   v. 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.

   vi. 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 Appellant'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 Appellant was "not north Korean". According to the Tribunal, on the basis of no evidence, the Applicant was "ethnically Korean residing in China for a significant period of time".

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

2. The submissions filed by the applicant did not expressly address ground 1 and ground 3.

Ground 1

1. In relation to ground 1, Mr McArdle submitted that this ground was interdependent upon ground 2 or ground 3 succeeding. No written submissions were advanced in support of the same. The Tribunal’s reasons on their face reflect an orthodox and comprehensive review of the applicant’s claims and evidence consistent with the statutory obligations of the Tribunal. As the Court does not accept that any error as alleged in ground 2 or ground 3 is made out, given the concession by Mr McArdle, ground 1 cannot succeed. On the face of the material before the Court the Tribunal conducted the review in accordance with the statutory requirements. The adverse findings by the Tribunal as summarised above were logical and rational and were open on the material for the reasons given by the Tribunal. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, the transcript does not support the assertion that the Tribunal did other than approach the conduct of review with an open mind reasonably capable of persuasion. The transcript supports the finding that the applicant had a real and meaningful hearing. The Court does not accept that the testing of the applicant’s evidence is conduct by reason of which a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.

2. The Tribunal’s reasons in relation to the relationship between the applicant and the applicants in matter SZQYM & Anor, being the mother and child, was the subject of identified reasoning that was logical and reasonable and open on the material before the Tribunal. The rhetoric of unfounded and outrageous inference is not supported and does not disclose any basis upon which a reasonably informed lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.

3. The disagreement with the s 424A letter raising the issue of the relationship with the mother and child in matter SZYQM & Anor is not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.

4. The reference to the Tribunal refusing to accept any evidence presented by the applicant is incorrect and an overstatement. It is apparent that the Tribunal engaged in the task it was required to do by weighing and assessing the credibility of the applicant in the present case, and the mother in the case of SZQYM & Anor. The assertion of a closed mind is not supported by the reasoning of the Tribunal or the evidence before the Court including the transcripts. The Tribunal’s reasons reflect a weighing of the applicant’s credibility that was open to the Tribunal for the reasons given by the Tribunal as summarised above.

5. The applicant’s contention that the matter had to be determined on the basis of the views expressed in the Federal Court of Australia hearing concerning s 91P of the Act misunderstands the review task of the Tribunal, as the Tribunal correctly identified in its reasons.

6. Further, contrary to the applicant’s submissions, there is no finding that SZQYN is the father of the child in matter SZQYM & Anor. Nor did the Tribunal disregard the applicant’s submissions in relation to the file note made by the Department about the relationship to the child. Nor did the Tribunal make a finding that the applicant had been coached or studied.

7. Paragraph 104 of the Tribunal’s reasons identifies that the Tribunal, consistent with s 424A of the Act, referred to the applicant’s lack of knowledge in 2015 leading to the conclusion that the applicant had learned and prepared for interviews organised by his agent with experts one year later. The Tribunal identified that it had not made its mind up about the information and that it put to the applicant the information in accordance with its obligations, and the Tribunal did not accept the applicant’s concerns in relation to putting the Tribunal’s concerns and information. As a matter of procedural fairness the Tribunal was correct to raise the issues with the applicant.

8. Further, on the evidence before the Court, including the transcripts and the Tribunal’s reasons, the Tribunal had a real and genuine engagement with the submissions in relation to recusal as well as the applicant’s evidence and submissions, as summarised above. The Tribunal gave logical and rational reasons for the refusal to accept the invitations to recuse itself. On the face of the material before the Court, the Tribunal correctly rejected the request for recusal. None of the particulars in (i) to (vi) support the allegation of apprehended bias.

9. There is nothing in the transcript of the hearing, including the questions put by the Tribunal that supports the Tribunal doing other than approaching the conduct of the review with an open mind, reasonably capable as to persuasion on the merits. The transcripts do not support that the Tribunal conducted the review in an aggressive, combative or highly prejudicial manner. The Tribunal’s reasons support the conclusion that the Tribunal conducted the review with an open mind reasonable capable of persuasion as to the merits. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, the particulars in respect of an alleged breach of s 424 of the Act make an incorrect assumption as to the nature of the decision of the judgment in the Federal Court of Australia by the learned Farrell J.

2. Further, the Tribunal identified logical and rational reasons in support of finding that the applicant was ethnically Korean, as referred to above. The evidence before the Tribunal was not identical to the evidence before the Federal Court and on the face of the material before the Court, the Tribunal had regard to the whole of the information before the Tribunal.

3. Further, the Tribunal, on the face of the material before the Court, complied with the statutory obligation in respect of inviting the applicant to attend a hearing and the applicant did attend a hearing. The Court is satisfied that the applicant had a real and meaningful hearing. There is no substance in the contention that the Tribunal breached s 424 of the Act. No jurisdictional error as alleged in ground 3 is made out.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 15 March 2019