SZRJG v Minister for Immigration

Case •

[2012] FMCA 980

•

5 October 2012

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRJG v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 980
MIGRATION – Review of a decision of the Refugee Review Tribunal – whether the applicant was denied procedural fairness – whether the Tribunal failed to take into account a relevant consideration – whether the Tribunal was biased – Tribunal’s findings were open to it on the evidence and material before it – no jurisdictional error – application dismissed.
Migration Act 1958 (Cth), ss.36, 65, 424A, 424AA, 425, 425A, 426, 426A, 441A, 441C, 476
Migration Regulations 1994 (Cth), reg.4.35D
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
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
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Applicant: SZRJG
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 824 of 2012
Judgment of: Nicholls FM
Hearing date: 5 October 2012
Date of Last Submission: 5 October 2012
Delivered at: Sydney
Delivered on: 5 October 2012

REPRESENTATION

The Applicant: In person
Appearing for the Respondents: Ms N Johnson
Solicitors for the Respondents: Sparke Helmore

ORDERS

  1. The application made on 16 April 2012 is dismissed.

  2. The applicant pay the first respondent’s costs set in the amount of $4,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 824 of 2012

SZRJG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

  1. This is an application made on 16 April 2012, pursuant to s.476 of the Migration Act1958 (Cth) (“the Act”), which seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 21 March 2012, which affirmed a decision of the Minister for Immigration and Citizenship’s delegate (“the delegate”) to refuse the grant of a protection visa to the applicant.

Background

  1. The applicant is a citizen of the People’s Republic of China (“China”) (Court Book – “CB” – CB 11). She arrived in Australia on 1 August 2008 on a student visa (CB 13). On 11 July 2011, the applicant applied for a protection visa (CB 1 – CB 28). She was assisted in the making of that application by a registered migration agent, “Zhanqi Li” (CB 29 – CB 31).

  2. The applicant’s claims to protection were initially set out in a written statement that accompanied her protection visa application (CB 26 – CB 28). The critical elements of the applicant’s factual account were as follows:

    1)The applicant and her family, although not her father, were said to be Christians. Her father was said to be leader of an underground church in China.

    2)As a result of his leadership he was “persecuted to death”. In particular, the applicant claimed in her statement that following the discovery of “evidence” such as Bibles, the applicant’s father was taken away by police. He subsequently passed away.

    3)The applicant said that his death was as the result of his being hit by the police in July 2009, even though the police claimed that he had died of some disease.

    4)In any event, following her father’s death, her mother and other members of the underground church wrote a letter in April 2010 to relevant “departments” in China.

    5)As a consequence of that letter being sent, the applicant’s mother was taken to the police station. The applicant also stated that the “brothers and sisters” of the church reported this “scandal” of the Chinese Government on some website. The statement claimed that the applicant’s mother was subsequently arrested and was sentenced to one month’s imprisonment, and was required, following her release, to attend at a police station to receive education.

    6)In her statement the applicant also said that on 31 April 2011 she wrote what she described as an “appealing” letter to the authorities in China detailing the death of her father. As a result, this letter was given to the police and a summons was issued for the applicant to attend at the police station to receive interrogation at a particular time.

The Delegate

  1. The applicant was invited to, and attended, an interview before the delegate (CB 47 – CB 49). She provided several documents in support of her claims (CB 50 – CB 55). The delegate refused the grant of a protection visa (CB 73). The relevant finding was that the applicant’s testimony “appeared rehearsed and contrived” and that “significant elements of her testimony were exaggerated, omitted or fabricated” (CB 68.4). The delegate found that the applicant was not a satisfactory witness. Further, the delegate found that the delay in the applicant lodging her protection visa application added weight to the finding that her claims to protection did not reflect the “reality” of her circumstances (CB 69.3).

  2. The delegate also specifically considered the “appeal letter” and the “Summons certificate” and found that, given the applicant’s vague evidence regarding the letter, the delegate could not be satisfied that the applicant had in fact written such a letter (CB 70.5). The delegate also found that the “Summons certificate” was a fraudulent document and placed no weight on it.

The Tribunal

  1. On 19 September 2011, the applicant applied to the Tribunal for review of the delegate’s decision (CB 74 – CB 77). At some short time subsequently, “Ms Jie Yu” a registered migration agent, was appointed as the applicant’s representative and authorised recipient for the purposes of the review. (CB 80).

  2. By letter dated 23 December 2011, the applicant was invited to, and attended, a hearing before the Tribunal (CB 82 – CB 83). She was also assisted on that occasion by an interpreter in the Mandarin language (CB 86).

  3. On 21 March 2012 the Tribunal decided to affirm the delegate’s decision (CB 92). In essence, the reason for this was that the Tribunal found that the applicant’s evidence at the hearing, and in her written statement, was inconsistent in “important respects” ([108] at CB 106). Further, the Tribunal found that her attempts to explain these inconsistencies were implausible and that, even further, her evidence in important parts was vague. Those numerous inconsistencies and the lack of explanation, led the Tribunal to find that the applicant was not a witness of truth and that her claims to protection were “false” ([110] at CB 107).

  4. The Tribunal found that there was no credible evidence that the Chinese authorities, any group, or person, had any interest in the applicant and wished to apprehend or to harm her ([113] at CB 107). In essence, the Tribunal rejected the applicant’s factual account of what she said had occurred in China and which was the basis for her fear of persecutory harm if she were to return ([110] at CB 107).

  5. The Tribunal also considered the various documents provided by the applicant in support of her claims, but for two reasons gave no weight to those documents ([115] at CB 108 – [116] at CB 109). The first was its findings as to the applicant’s evidence that her claims were false, and the second was derived from the regard it had regard to country information that was before it that the availability of fraudulent documents in China was widely available. For those two reasons no weight was placed on these documents.

Before the Court

  1. The application before the Court contains the following bare assertions:

    “1. RRT denied me a chance of fair opportunity to present my argument before it.

    2. RRT failed to take into relevant matter in considering my application to have my decision made by DIAC to be reviewed.

    3. RRT and DIAC have bias against me as I could not afford a lawyer.”

  2. On 2 May 2012, the applicant appeared before the Court at the first Court date. I note that on that occasion she was assisted by an interpreter in the Mandarin language. At that time I took steps to explain to the applicant that the Court was not concerned, and could not be concerned by law, with the question as to whether or not she met the definition of “refugee”, but that the Court could only be concerned with “legal issues”. In particular, whether the Tribunal in making its decision made a “legal mistake” in the way it went about making its decision.

  3. For the purpose of assisting the applicant, and given the applicant’s willingness to engage in the Court’s “RRT Legal Advice Scheme”, I took steps to ensure that the Registry of the Court referred the applicant to a lawyer on the panel of that scheme. I urged the applicant to listen, and attend very carefully, to the lawyer because if there was any legal error on the part of the Tribunal, that lawyer would be in the best position to assist her and explain that error so that she could then present that error to the Court.

  4. I note from the Court’s file that a Certificate has been caused to be placed on the file by a member of that panel. I note that Mr Cameron Jackson, who was the relevant panel member, is an experienced and respected counsel who often appears representing applicants before the Court in matters of this type. The applicant confirmed today that she did speak to Mr Jackson. Despite the opportunity of obtaining legal advice, and the opportunity to subsequently file any amended application or, indeed, any other material in support of her application to the Court, nothing further has been put before the Court by the applicant. The applicant attended today and sought merely to press the vague and general statements made in her original application.

  5. It is, of course, not appropriate for the Court to inquire, and the Court did not inquire further as to what advice may have passed between her and Mr Jackson. However, I am satisfied that the applicant has had the opportunity to have explained to her both the nature of the proceedings which she has initiated before this Court, and the opportunity to obtain assistance in identifying any jurisdictional error on the part of the Tribunal.

  6. I should note that before the Court today the applicant was again assisted by an interpreter in the Mandarin language. Ms N Johnson appeared for the first respondent.

  7. It was quite clear today that the applicant exhibited very little understanding of the process which she had sought to pursue before this Court or, if she did have such an understanding, then she proceeded with disregard to it. The applicant, when questioned by the Court, gave as the reason for coming to this Court a complaint that the Tribunal found that her materials were false. That is, her documents were false and that she was not given a fair opportunity before the Tribunal. She could give no particulars as to whether there was anything specific that she found unfair and then repeated a claim made in her application that the Tribunal was biased because she could not afford a lawyer.

  8. The Court spent some time trying to ascertain exactly what the applicant meant by that. At first, and at best, and with great respect to the applicant, her responses were confused and at one point it appeared that her complaint was that she did not have a migration agent before the Tribunal. But plainly, having regard to the document that is reproduced at CB 80 and as the applicant subsequently confirmed, she did have a migration agent to assist her. The reference therefore as to why the Tribunal had bias against her because she could not afford a lawyer remains unexplained before the Court. I will return to that point later.

Ground 1

  1. In ground one of the application, the allegation is that the Tribunal denied the applicant a fair opportunity to present her arguments before it. What exactly is meant by this, despite opportunity provided to the applicant today to explain, remains a mystery. As submitted by the Minister, the applicant was invited to a hearing before the Tribunal pursuant to s.425 of the Act. That invitation, I note from the material in the Court Book, complied with all of the relevant statutory and regulatory requirements attended on such an invitation (see ss.425, 425A, 426, 426A, 441A, 441C and reg.4.35D of the Migration Regulations 1994 (Cth)).

  2. The only account before the Court of what occurred at the hearing is that contained in the Tribunal’s own decision record. The applicant has not provided any evidence to the Court to challenge that account. In these circumstances it is not open to the Court to make assumptions about what might otherwise have happened at that hearing (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241). The Tribunal’s account reveals that it was made clear to the applicant its many concerns with her claims and her evidence. Further, the applicant was given the opportunity to respond to these concerns.

  3. It is the case that the issue in this review was the Tribunal’s wholesale disbelief of the applicant’s factual account of events in China which she said provided the basis for her fear of harm should she return. This concern, this disbelief, and each of the constituent parts relevant to this disbelief, was plainly raised with the applicant at the hearing in a way consistent with the concept of procedural fairness as explained by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 (“SZBEL”).

  4. In any event, having regard to what the High Court otherwise said in that case, I note that the credibility of the applicant’s account and claims was, in fact, a live issue following the delegate’s decision. As a result of that decision, by the time she came to appear before the Tribunal, the applicant could have been in no doubt that the credibility of her claims was at issue.

  5. The Tribunal’s findings, and conclusion in this regard, that is, its findings as to the applicant’s lack of credibility, were all open to it on what was before it. The Tribunal, it must be said, gave cogent reasons for its disbelief. The Tribunal’s adverse credibility findings and the conclusion that flowed from those findings cumulatively were all findings of fact within jurisdiction (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 (“Durairajasingham”) at [67] per McHugh J). It is the case, as the Minister submits, less that the applicant think otherwise, that the Tribunal was under no legal obligation to accept the applicant’s claims at face value.

  6. The task given by the Act to the Tribunal, and as understood in light of relevant authorities, is to conduct a review of the delegate’s decision, to consider the applicant’s claims and evidence, to consider all of the claims presented and to make findings of fact, and if those findings of fact cause it to reach the requisite level of satisfaction that the applicant meets the definition of “refugee”, then the protection visa must be granted. But if the Tribunal cannot reach that requisite level of satisfaction, the protection visa must be refused (ss.65 and 36(2) of the Act and see SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22, NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4] – [5] and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).

  7. I note that also, in relation to the question of a “fair opportunity”, that the Tribunal did make reference to s.424AA of the Act in its decision record. This was in the context of raising with the applicant, at the hearing, information that she had given to the delegate at the previous interview.

  8. As is established now, s.424AA of the Act is a facilitative mechanism that is available to the Tribunal to discharge orally, at the hearing, any obligation to give to an applicant information pursuant to s.424A(1) of the Act, which it considers would be the reason, or a part of the reason, for affirming the delegate’s decision.

  9. In circumstances where such information does not fall into any of the exceptions to that obligation as set out at s.424A(3) of the Act, then the Tribunal is required to either put such information to the applicant in writing, or use s.424AA of the Act, if it considered that the information would be the reason, or a part of the reason, for affirming the delegate’s decision. That the Tribunal plainly in this case did not ultimately rely on such information in reaching its adverse view of the applicant’s evidence does not reveal any legal error on its part.

  10. Whether the Tribunal considered that it would be the reason at the time of the hearing and subsequently found otherwise on reflection, or whether the Tribunal was simply being cautious at the hearing, whichever of the two it was, no legal error is revealed in the circumstances.

  11. I should just note the applicant’s statement to the Court today that the Tribunal was not “fair”. In terms of the process before the Tribunal I cannot see that procedural fairness was denied to the applicant, either by way of the relevant parts of the Act that applies to matters of this type (that is, Div. 4 of Pt.7), or even, it must be said, if the relevant principles of common law were to apply. The applicant was given the opportunity to present her claims, she was put squarely on notice of the case against her and was given the opportunity to comment.

  12. I should also just note that in case the applicant’s complaint of the lack of fairness related to the outcome of the Tribunal’s decision rather than the process, it is the case that the Tribunal is required to provide a fair process, not necessarily a fair outcome (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, see also SZBEL at [25]).

  13. In any event, ground one does not reveal jurisdictional error on the part of the Tribunal.

Ground 2

  1. Ground two of the application alleges that the Tribunal failed to take into account a relevant matter in considering the application. What that relevant matter is, was not particularised in the application, and nor did the applicant say anything today to indicate what the Tribunal’s failure was in this regard. It may just be, given that the applicant previously said to the Court that her migration agent told her to come to the Court, presumably to see “what happens”, that this was some formulaic sentence provided to the applicant merely to enable her to put something in her application to the Court.

  2. Whatever it is, it is the case that a failure by the Tribunal to take into account a relevant matter may well lead to jurisdictional error (Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389, Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51, Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 and NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No.2) [2004] FCAFC 263; (2004) 144 FCR 1). But it is the case, after looking at all of the relevant material placed before the Court, that I cannot see that the Tribunal made any such error, or fell into any such failure.

  1. Ground two, therefore, is also not made out.

Ground 3

  1. As to ground three this is a matter of some concern. It says that the Tribunal and the Minister’s department had a bias against the applicant because she could not afford a lawyer.

  2. There are a number of elements here that need to be addressed.

  3. The first is, as the Minister submits, the Court has no power to review the delegate’s decision. Presumably the reference to “DIAC” in the applicant’s ground is a reference to the delegate’s decision. In the circumstances, given that the delegate’s decision was not only reviewable by the Tribunal, but was in fact also reviewed by the Tribunal, the Court has no power to review any claim that the delegate fell into any legal error (s.476(2)(a) of the Act).

  4. In relation to the Tribunal’s decision, it is clear that the applicant had no concept of the seriousness of the allegation that she was seeking to put before the Court. As is well established, having been repeatedly said in many authorities, an allegation of bias against an administrative decision-maker, unlike other allegations of legal error, is a very serious allegation that strikes at the very integrity of the person making the decision (Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J, see also SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [43] per Tamberlin, Mansfield and Jacobson JJ, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).

  5. It is the case, therefore, that such allegations of bias need to be clearly made and require evidence so that they can be distinctly proven. In the current case, the applicant has failed to do either. It is not even clear if the applicant is seeking to rely on the decision record alone. As has often been said, it is very difficult circumstances that bias can be made out simply and solely on the decision record alone (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668). But in any event the applicant’s allegation of bias appears to emanate from a reason which, if one were to have proper regard to the law regarding bias, is quite frankly nonsensical. The applicant’s claim is that the Tribunal had a bias against her because she could not afford a lawyer.

  6. The legal test for bias is well established (see authorities in [38]). For current purposes, it is suffice to say that evidence would need to be brought forward that the Tribunal did not bring an open mind to the proceedings before it. That means that the Tribunal had, in some way, prejudged the matter, and therefore did not give it proper consideration. That is, the Tribunal had already made up its mind.

  7. There is nothing before the Court to suggest that the Tribunal came to this matter with a closed mind. In its letter of invitation to a hearing to the applicant the Tribunal told the applicant that on the material before it was unable to make a favourable decision just on that information alone. That cannot be said in the circumstances to be any expression of any prejudgment of the applicant’s case. It is, in fact, an expression consistent with the relevant statutory scheme that directs the review in matters of this type. That is, the Tribunal’s signal to the applicant that it could not reach the requisite level of satisfaction to which I have already referred, such that the protection visa must be granted. The invitation to hearing, therefore, far from being an expression of bias was indeed an expression of the statutory direction that the applicant receive fairness in the procedure adopted by the Tribunal. The applicant was therefore invited to a hearing for the specific purpose of giving evidence and explaining her claims.

  8. The fact that the applicant was unable to satisfactorily explain her claims in a credible way to the Tribunal does not reveal bias on the part of the Tribunal. It is merely a reflection of the Tribunal’s exercise of the statutory power that has been given to it to make findings of fact, including findings as to the credibility of what is being put to it (Durairajasingham). Just for the sake of completeness I note that, in sending the letter of invitation, the Tribunal complied with the compulsion in s.425(1) of the Act in circumstances where s.425(2) of the Act did not apply.

  9. I should just note again, further in relation to ground three, that I am unaware of any right of legal representation before the Tribunal. I note that the relevant statutory scheme that applies to matters of this type of representation before the Tribunal, while not barring lawyers from participating, emphasises the availability of migration agents for that purpose. Indeed, despite the applicant’s apparent confusion, it is quite clear that she was assisted by such an agent before the Tribunal (CB 80).

  10. In all, therefore, ground three is not made out.

Conclusion

  1. In the absence of anything further from the applicant, and having regard to the material that has been put before the Court, it is the case that I cannot see any jurisdictional error in what the Tribunal has done. Without such error being revealed it is the case that the appropriate course for this Court is to make an order dismissing the application. I will make such an order.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  26 October 2012

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