SZRDD v Minister for Immigration
[2012] FMCA 543
•27 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRDD v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 543 |
| MIGRATION – Review of decision of Refugee Review Tribunal – potential complaint that the Tribunal failed to consider all of the applicant’s claims – alleged bias on the part of the Tribunal – allegation of bad faith – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.66, 417, 422B, 424A, 424AA, 425, 425A, 426A, 441A, 441C, 441G, 476 Migration Regulations 1994 (Cth), r.4.35D |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 Saeed v Minister for Immigration & Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Ebner v Official Trustee (2000) 75 ALJR 277 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 |
| Applicant: | SZRDD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 267 of 2012 |
| Judgment of: | Nicholls FM |
| Hearing date: | 22 June 2012 |
| Date of Last Submission: | 22 June 2012 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2012 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondents: | Mr J Smith |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The application made on 7 February 2012 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 267 of 2012
| SZRDD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application, made on 7 February 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal, made on 9 January 2012, which affirmed the decision of the respondent Minister’s delegate that the applicant not be granted a protection visa.
Background
The applicant is a citizen of the People’s Republic of China (“China”) of Korean ethnicity (Court Book – “CB” – CB 11 and CB 25). She arrived in Australia on 23 March 2004 (CB 13). On 19 April 2004 the applicant applied for a protection visa (CB 1 to CB 28 with annexures).
In support of that application she provided a statement, dated 21 April 2004 and titled “Reasons for Applying for Protection Visa”, in which she set out her claims (CB 25 to CB 28). Those claims can be summarised as follows:
1)As a result of being an ethnic Korean, the applicant and her family were discriminated against in China.
2)At the age of twenty-four the applicant worked in a restaurant. She was forced to have a sexual relationship with her manager, and “… lived under his harassment and torture for almost four years …”
3)The applicant subsequently had a number of low-paid jobs. She continued to be discriminated against and sexually harassed in those workplaces. Despite reporting those incidents to the police, nothing was done.
4)In 2003 the applicant tried to establish her own business. Due to discrimination the applicant was not able to lease the premises in her own name, nor obtain a business registration certificate. Instead the lease and operating license were in the name of friend.
5)The applicant’s business operated successfully for several weeks, however in February 2003 four policemen came to the premises and “destroyed everything”. They detained the applicant, threatened her with prison, and all four men raped her. She was eventually released and told that she would be killed if she told anyone what had happened to her.
6)The applicant did not tell anyone about the incident. A few months later one of the policemen who had assaulted her approached the applicant and told her that as long as she stayed silent no charges would be laid against her regarding her illegal business. Nor would her husband or her children suffer. Again, the applicant was sexually assaulted.
7)The applicant subsequently determined that she would leave China and, with the assistance of a friend, arranged for a passport and visa.
The Delegate
On 26 August 2004 the Minister’s delegate refused the grant of a protection visa to the applicant (CB 40 to CB 45). It is unclear from that decision record and the Court Book whether the applicant was invited, or attended, an interview with the delegate.
The delegate was not satisfied that the applicant faced persecutory harm in China because of her Korean ethnicity (CB 44). This finding was based on the applicant’s own evidence that she had been able to find employment, albeit poorly paid, in China. Further, the delegate found that there was no evidence to suggest that the low income the applicant had received was a result of discrimination, as opposed to her limited schooling. Nor that the authorities would be unwilling to protect her from the discrimination she claimed. Finally, the applicant’s ability to depart China suggested that she was not of interest to the authorities at the time of her departure.
The delegate’s decision record was posted to the applicant’s address for service, however it was returned because of an “Insufficient Address” and marked to indicate that the addressee was “Unknown” (CB 46).
Ministerial Intervention
Prior to applying to the Tribunal for review, by letter dated 27 June 2011, the applicant wrote to the Minister and requested his intervention pursuant to s.417 of the Act (CB 50 to CB 51). That statement claimed, in addition to the matters raised in the statement that accompanied her protection visa application, that her father had been perceived by Chinese authorities to be a “spy”. On 12 July 2011 the applicant was advised that the Minister did not have the power to consider her request as she had not yet made an application, nor had a decision, from the Tribunal (CB 56 to CB 57).
On 1 August 2011 the applicant again requested that the Minister intervene to grant her a protection visa (CB 69 to CB 71). In that document the applicant raised several additional claims, including that since her departure from China her husband had converted to Falun Gong, that he had been imprisoned for three months, and that a summons had been issued in China for her ([83] at CB 107).
By letter dated 27 October 2010 the applicant was again advised that the Minister could not consider the request as the Tribunal had not made a decision with respect to her case (CB 75 to CB 77).
The Tribunal
On 20 July 2011 the applicant applied to the Tribunal for review of the delegate’s decision (CB 60 to CB 61). She was assisted in her application for review by a different registered migration agent, “Mr Zhanqi Li”. On 5 August 2011, the applicant appointed that migration agent as her representative and authorised recipient of correspondence for the purpose of her review application (CB 47 to CB 49). On 20 October 2011 a different migration agent, “Ms Jie Yu” from “Eternity International P/L”, was appointed as the applicant’s representative (CB 72 to CB 74).
The review application was accompanied by a letter from the applicant to the Tribunal in which she reiterated her claims. Further, presumably as explanation for the delay in lodging her review application, she stated that “the agency I went to in 2004 was closed down a long time ago and I lost all contact with them” (CB 65).
The applicant was invited to attend a hearing before the Tribunal on 8 December 2011 (CB 78 to CB 81). The applicant indicated her intention to attend and requested an interpreter in the Mandarin language (CB 82). However on 18 November 2011 she requested that an interpreter in the Korean language be provided as she had difficulty understanding Mandarin (CB 83 to CB 84).
The applicant attended that hearing and was assisted before the Tribunal by an interpreter in the Korean language. The Tribunal’s account of what occurred at that hearing is set out in its decision record ([33] at CB 99 to [77] at CB 106).
Despite the delay in the making the application, the Tribunal found that the delegate’s decision was still reviewable as it did “…not appear that the RRT brochure was included with the documents returned to the Department”. As such the Tribunal found that notification of the delegate’s decision had not complied with s.66(2)(d)(iv) of the Act and, accordingly, the applicant had not been validly notified of the delegate’s decision ([78] at CB 106).
On 9 January 2012 the Tribunal decided to affirm the decision of the Minister’s delegate (CB 109). In coming to that conclusion it had regard to the applicant’s statement which accompanied her original application, the delegate’s decision, the applicant’s claims in her various written statements to the Minister requesting intervention, and her oral evidence and written statements to it. It found significant inconsistencies in her various records, that some of her evidence was vague, and that it was not satisfied with her explanations for this.
The Tribunal found that the applicant was not a witness of truth and rejected all of her claims ([85] at CB 107). That conclusion was, in part, based on the applicant’s failure to “… mention in her oral evidence, until prompted, her claims to have been sexual assaulted” ([86] at CB 107) and her inconsistent evidence in relation to the sexual assaults ([87] at CB 107). Her impugned credibility led the Tribunal to reject the applicant’s evidence with respect to all of her claims ([94] at CB 108).
In finding that the applicant was not a witness of truth, the Tribunal considered the applicant’s claim that she had “… only a faint memory of events…” ([94] at CB 108). It rejected that explanation as sufficient to explain the “significant inconsistencies” in her evidence, particularly given that her written claims were quite detailed ([94] at CB 108).
The Tribunal rejected the applicant’s factual account of claimed relevant events in China, including the circumstances surrounding the claimed sexual assault, her husband’s claimed Falun Gong practice and her claims to have sent him Falun Gong publications. The Tribunal found that these claims had been manufactured ([85] at CB 107 to [96] at CB 108).
With reference to country information, the Tribunal accepted that a person of Korean ethnicity may face discrimination in China ([97] at CB 108). However, given its adverse credibility finding, the Tribunal was not satisfied that the applicant faced a real risk of serious harm if she returned to China because of her Korean ethnicity ([97] at CB 108).
Application to the Court
The application to the Court contains the following grounds of complaint:
“1. My vulnerability was not accounted for my weakness in preparing my case.
2. My case was not considered fairly by RRT.
3. My disadvantaged background was exploited by RRT and DIAC.
4. The Tribunal was prejudicial against me because I couldn’t respond immediately in the interview, that’s unfair and discriminative. I need more time to understand the confronting information.”
Before the Court
The applicant appeared in person and was assisted by an interpreter in the Mandarin language. Mr J Smith of counsel appeared for the first respondent. The Court had before it the Court Book (noting that it omitted page 18 and 19 of the Tribunal’s decision record) and written submissions filed by the first respondent.
The first respondent sought leave to rely upon a supplementary Court Book containing the Tribunal’s complete decision record. I note that that document contained markings. Leave was granted for the two pages that had been omitted from the Court Book (both of which were clean copies) to be filed in Court (Supplementary Court Book – “SCB”).
At the first Court date the applicant had appeared in person. I explained to the applicant that the Court was concerned with the question of legal error, specifically jurisdictional error, and urged her to attend to the panel lawyer assigned to her under the Court’s “RRT Legal Advice Scheme”.
A certificate on the Court’s file from that panel lawyer indicates that the applicant did attend and that written advice was provided to her. Despite the opportunity to obtain legal advice, and consent orders made on the first Court date providing the applicant with leave to file an amended application, the applicant sought to press the bare grounds of her original application to the Court.
As noted above at [12] and [13], before the Tribunal the applicant initially requested the services of an interpreter in the Mandarin language (CB 61) before changing her request to an interpreter in the Korean language (CB 83). The hearing proceeded with an interpreter in the Korean language ([33] at CB 99).
At the first Court date in this matter the applicant indicated that, for the purposes of these proceedings, she required an interpreter in the Mandarin language. The interpreter provided before the Court on that occasion was accredited in that language.
However, given what the applicant relevantly told the Tribunal about her greater proficiency in Korean ([33] at CB 99), I inquired at the commencement of the hearing as to whether she had any difficulties with the interpreter provided by the Court. The applicant stated she could understand the interpreter, that there were “no problems” and that she was content to proceed. No indication of any difficulty in this regard subsequently arose.
Despite the Court’s attempt at the first Court date to explain the nature of these proceeding to her, and despite the opportunity afforded to her through her participating in the Court’s “RRT Legal Advice Scheme”, the applicant made no submissions indicating jurisdictional error on the part of the Tribunal, let alone revelatory of it.
Before the Court the applicant’s oral complaint was that the Tribunal’s decision was “not right”. The applicant took issue with the Tribunal finding inconsistencies in her various accounts. She repeated before the Court some of the explanations that she had provided to the Tribunal for these inconsistencies. Namely that she told “her story” to her daughter who wrote it in her statement in English (presumably with reference to CB 69 to CB 71 and see [45] at CB 101), and that she could not remember the contents of that written document ([48] at CB 101).
The Tribunal did indeed find many inconsistencies in the applicant’s various accounts of claimed relevant events in China. On the only relevant evidence before the Court, the Tribunal’s account of the hearing it conducted with the applicant, it is clear that the Tribunal squarely raised each of its concerns about the applicant’s written claims, her oral evidence and her explanations for the inconsistencies found.
The Tribunal’s findings in this regard, and the conclusion to which they led, were all probative of the material before it and reasonably open to the Tribunal to make. The Tribunal gave cogent reasons for its finding and presented a rational analysis of the material. The Tribunal’s findings, including its comprehensive and adverse finding as to the applicant’s credibility, were all made within the proper exercise of its power and jurisdiction.
As indicated above, the grounds of the application lacked particularity. The applicant was unable to assist the Court further at the hearing. She said that the grounds had been drafted by her daughter and she could “not remember”. Given the similarity between that explanation and her explanation to the Tribunal (in relation to her written statement to it) I sought, and was given, confirmation that the applicant was referring now to the grounds of the application before the Court.
Ground One
In these circumstances, just what is meant by ground one of the application remains unclear. If it is a reference to the applicant’s claimed poor memory and limited education, given to the Tribunal as reasons for the inconsistencies in her claims, then the Tribunal took all of the applicant’s claimed difficulties into account in making its findings and reaching its conclusion (see especially as concluded at [94] at SCB 2).
The applicant’s complaint therefore does not rise above a challenge to the factual findings made by the Tribunal. On its own, this cannot give rise to jurisdictional error being found by the Court (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
Ground Two
The second ground asserts that the Tribunal did not consider her case fairly. Again, the absence of particulars and any explanation from the applicant makes it difficult to comprehend the exact nature of the complaint. The following represent some possible explanations for the complaint, although none reveal jurisdictional error.
First, the Tribunal is required to consider all of an applicant’s claims expressly stated and clearly arising from the circumstances presented (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1, and Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244). If the implication of the applicant’s ground is that the Tribunal did not, then such a complaint cannot succeed on the material before the Court.
Second, if the applicant seeks to complain that the procedure before the Tribunal was not fair then this cannot succeed. Whether regard is had to relevant principles as at common law, or to s.422B of the Act (as understood in light of Saeed v Minister for Immigration & Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204) and the matters dealt with in Div.4 of Pt.7 of the Act, the complaint does not succeed.
The applicant was invited to a hearing pursuant to s.425 of the Act. That invitation complied with all the relevant statutory and regulatory requirements (s.425, s.425A, the reference to s.426A, s.441A(4), s.441C(4), s.441G of the Act and r.4.35D of the Migration Regulations 1994 (Cth)). The determinative issues in the review were exposed at that hearing (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592).
Nor did any obligation pursuant to s.424A(1) of the Act arise. It is clear that what the Tribunal considered at the hearing would be the reason, or a part of the reason, for affirming the delegate’s decision were the inconsistencies in the applicant’s statement and evidence and its evaluation of those inconsistencies. None of that fell within the meaning of “information” for the purposes of s.424A(1) of the Act (SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [18]). Given the material before the Court the applicant was put on notice of the case against her and was given the opportunity to respond.
In this latter regard, the applicant complains that she was not given sufficient time, or sufficient opportunity, at the hearing (“interview”) to respond to the matters put by the Tribunal
The difficulty for the applicant now is that there is no evidence before the Court to support the applicant’s complaint. The only relevant evidence, the Tribunal’s account of the hearing, is not challenged in any evidentiary context by the applicant. In these circumstances, it is not open to the Court to draw inferences as to what may otherwise be said to have occurred (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241). There is nothing before the Court to show that the applicant even indicated to the Tribunal, either at the hearing or subsequently, that she needed more time to understand what was being put to her and to be able to meaningfully respond.
Nor is there anything to show that the Tribunal should have noticed that the applicant needed more time for that purpose. Neither the applicant’s inability to provide satisfactory explanations, nor the perceived deficiencies in her evidence, obliged the Tribunal to provide her with more time.
I also note that the applicant, by the time of the hearing before the Tribunal and up to the making of its decision, was represented by a registered migration agent (Ms Jie Yu of “Eternity International P/L” – CB 72). No complaint in this regard, or for that matter any other, was received from the agent on behalf of the applicant. The applicant also had available to her for this purpose her daughter whom she said drafted her statement to the Tribunal.
Given that s.424A of the Act was not engaged, the Tribunal did not need to employ the facility in s.424AA to put “information” to the applicant for comment or response. In other such circumstances it may have been that the offer of more time would have been required (see s.424AA(b)(iii) of the Act). However, this does not apply in the circumstances of the current case.
Therefore, whether this complaint can be seen in light of s.425 of the Act, or even more broadly within procedural fairness principles at common law, as Mr Smith submits, any such complaint must be rejected in circumstances where the applicant has failed to indicate, let alone establish, the factual premise upon which any such complaint must be built if it is to succeed.
Grounds Two and Four
Implicit in ground two, and explicit in ground four, is the complaint that the Tribunal was prejudiced, or acted prejudicially, towards the applicant. This may seek to invoke an allegation of bias, or apprehended bias, on the part of the Tribunal.
The test for both, respectively, are:
1)The Tribunal was so committed to a conclusion already formed prior to the hearing as to be incapable of alteration, whatever evidence or arguments may have been presented (Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (“Jia Legeng”)).
2)A fair-minded lay observer might reasonably apprehend that the Tribunal had not brought an impartial mind to the resolution of the questions to be decided (Ebner v Official Trustee (2000) 75 ALJR 277).
There is nothing in the material before the Court to show that either complaint can be made out. Further, the applicant has provided no evidence to support any such allegation, and it is a rare case when such an allegation can be made out with reference to the decision record alone (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668). Given the seriousness of an allegation of bias, apprehended or otherwise, going as it does to the very integrity of the decision maker, some evidence would be necessary to found this complaint, let alone make it out.
Ground Three
The applicant’s third ground asserts that the Tribunal “exploited” her “disadvantaged background”. The Minister suggested that this may be construed as some allegation of bad faith on the part of the Tribunal. That is a serious allegation, going as it does to the very integrity of the decision maker. Any such allegation must be distinctly made and clearly proven. It cannot be made by reliance only on mere suggestion (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425, Jia Legeng at [69] per Gleeson CJ and Gummow J and at [127] per Kirby J, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [43] per Tamberlin, Mansfield and Jacobson JJ and VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102).
In the circumstances of this case, I cannot see that bad faith can be made out. The Tribunal was sensitive to the applicant’s claimed “disadvantages”. For example, but not restricted to, her limited education and her claims that her Korean ethnicity acted to her disadvantage in China. That the Tribunal did not accept that these “disadvantages” led to establishing a real chance of persecutory harm, or were not satisfactory explanation for the difficulties it had with her evidence, does not establish bad faith on the part of the Tribunal.
To the extent that the applicant claims bad faith on the part of the delegate, then s.476(2) of the Act, when read with s.476(4), provides that the Court has no jurisdiction to review the delegate’s decision as it is a “primary decision” which has been reviewed by the Tribunal under Pt.7 of the Act.
Conclusion
For the applicant to be successful before the Court, as I explained at both the first Court date and the final hearing of this matter, she would need to establish jurisdictional error on the part of the Tribunal. Nothing the applicant has put before the Court, either in oral submissions or the grounds of her application, asserts, let alone reveals, such error. In the circumstances, the application should be dismissed. I will make an order accordingly.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 27 June 2012
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