SZRPS v Minister for Immigration
[2012] FMCA 981
•26 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRPS v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 981 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China from local officials – applicant not believed – no arguable case of jurisdictional error. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 424AA |
| Minister for Immigration v Jia (2001) 205 CLR 507 Minister for Immigration v SZIAI (2009) 259 ALR 429 Re Refugee Review Tribunal; Ex parte H (2001) 79 ALR 425 VFAB v Minister for Immigration (2003) 131 FCR 102 |
| Applicant: | SZRPS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1446 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 26 October 2012 |
| Delivered at: | Sydney |
| Delivered on: | 26 October 2012 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr H Bevan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,471 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1446 of 2012
| SZRPS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (the Tribunal). The decision was made on 5 June 2012. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from China, and had made claims of persecution based on an asserted dispute with local government authorities in China.
Background facts relating to the applicant’s claims, and the Tribunal’s decision on them are conveniently set out in the Minister’s written submissions, filed on 22 October 2012.
The applicant is a national of China[1].
[1] so the Tribunal found at Relevant Documents (RD) 141 [76]
He arrived in Australia on 20 August 2007 as the holder of a business (class UC, subclass 457)[2]. That visa was cancelled on 15 May 2008. Although the applicant applied for review of that decision four days later, the Migration Review Tribunal apparently decided (on 26 August 2008) that it had no jurisdiction[3].
[2] see RD 11. There does not appear to have been a legal challenge to that decision.
[3] see RD 44
He remained in Australia thereafter (without a valid visa) until he applied for a protection visa on 25 August 2011[4].
[4] RD 1-35
The applicant’s claims to fear persecution were set out in a written statement attached to his application[5]. Broadly, the applicant claimed to have a well-founded fear of persecution arising from his actions in petitioning various levels of government over the demolition of his (and his wife’s) chicken farm and associated allegations of corruption against local officials. The farm was demolished in May 2006 and the applicant claimed that he made various petitions from October 2006. He claimed that he was detained and beaten on different occasions.
[5] RD 30-32
On 25 October 2011, the applicant attended an interview with the Minister’s delegate[6].
[6] RD 38-39; RD 54.6-56.2; see also RD 122 [24]
The Minister’s delegate refused to grant the applicant a protection visa on 26 October 2011[7].
[7] RD 44-60
By application lodged on 23 November 2011, the applicant applied to the Tribunal for review of the delegate’s decision[8].
[8] RD 61-64
By letter dated 29 March 2012, the applicant was invited to attend a hearing before the Tribunal[9], an invitation which was duly accepted[10].
[9] RD 71-73
[10] RD 74
Before the hearing, the applicant submitted documents to the Tribunal, including a letter from the applicant to a Falun Gong group[11]; a medical record and his father’s death certificate[12]. (In his statement, the applicant had claimed that his father had died two weeks after being pushed to the ground by police.)
[11] RD 68-69
[12] RD 75-79
The applicant attended a hearing before the Tribunal on 24 May 2012[13].
[13] RD 128 [25]-[75]
On 5 June 2012, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa[14].
[14] RD 116-150
Tribunal’s findings and reasons
The Tribunal’s findings and reasons are at RD 141 [76]-[100].
The Tribunal first noted that the “significant delay” between the claimed events in China and his application for a protection visa in Australia “gave rise to several concerns … regarding the credibility” of the applicant’s claims[15]. The Tribunal considered that:
·the applicant had not provided a “convincing explanation” for why he waited four and a half years before applying for protection[16];
·if his claims (as to harm he claimed to have suffered and the on-going harassment he claimed his family was subjected) were true, it would have expected him to seek protection earlier and not to have waited[17];
·this delay “significantly undermines” his claims[18];
·the lapse of over five years since his last action against local officials “undermines his claim that they have any ongoing interest in him”[19].
[15] RD 142 [80]
[16] RD 142 [81]
[17] RD 143 [82]
[18] RD 143 [82]
[19] RD 143 [83]
The Tribunal acknowledged that the applicant’s account had been consistent but, having reviewed all the evidence, the Tribunal was not satisfied that the applicant’s main claims over the year May 2006 to May 2007 were true[20].
[20] RD 144 [84]
The Tribunal characterised as “very problematic” the applicant’s evidence regarding other events, associated with his departure from China, in the 2006-2007 period, and their interaction with his account of events in his claims. The applicant was “unable to place claimed events within his timeline of claims” and there were “significant changes and inconsistencies in his evidence about other events”. The Tribunal also found the applicant “evasive”. The combination of these factors “gave rise to serious concerns” on the part of the Tribunal that not only was the applicant “not providing a full and frank account of events” but that he had “not been truthful in his account provided in his protection visa claims” (RD 144 [85]).
The Tribunal provided seven examples. They were:
·First, the applicant’s account was “very precise and consistent about certain events” (eg, when the farm was demolished, when he began petitioning) but he was “vague and hesitant about the timing of other events” (eg, his trades test, his English course). This contrast gave rise to a concern that events in his claims “may be part of a learned and practiced [sic] account of the period, and not an account of actual events”[21].
·Secondly, the applicant’s initial denial of having undergone a trades assessment and his later evidence that such a step was important in achieving his aim of leaving China gave rise to a concern that “the applicant was attempting to obscure the circumstances in which he arranged to leave China”. This “undermines his credibility as a witness generally”[22].
·Thirdly, the applicant’s “inconsistent evidence” about when he finished work in China raised doubts “about his credibility as a witness and the credibility of his account regarding the circumstances in which he left China”[23].
·Fourthly, the Tribunal found the applicant “evasive” about the costs involved in and associated with his business visa application[24].
·Fifthly, the Tribunal considered that the applicant’s account of why he stopped work in October 2006 and his subsequent activities “evolved” and was “unconvincing”[25].
·Sixthly, the Tribunal considered that the timing of the commencement of his business visa process undermined the Applicant’s claim that he left because he was persecuted[26].
·Seventhly, the Tribunal considered that the fact that the applicant (or his boss) spent “a very large amount of money over a lengthy period of time” for a business visa “to be at odds” with his claim that he feared for his safety and arranged to leave China (with the support of his boss) for that reason[27].
[21] RD 144 [85(a)]
[22] RD 144 [85](b)]
[23] RD 145 [85(c)]
[24] RD 145 [85(d)]
[25] RD 145 [85(e)]
[26] RD 146 [85(f)]
[27] RD 146 [85](g)]
On the basis of its concerns as to his credibility, together with the lengthy delay in applying for protection, the Tribunal did not accept that the applicant left China because he was persecuted or suffered serious harm in association with the demolition of the farm and subsequent protests and petitions[28]. Rather, he left because of an opportunity to undertake a skills test and obtain a 457 visa (so the Tribunal found)[29].
[28] RD 147 [86]
[29] RD 147 [86]
The Tribunal did not accept the applicant as a witness of credit and did not accept that he had been truthful about his claims for protection[30]. The Tribunal accordingly rejected each of the applicant’s claims[31].
[30] RD 147 [87]
[31] RD 147 [88]
Further, the Tribunal:
·considered that the documents submitted by the applicant provided “no substantiating evidence of any weight”[32];
·considered that the “contradictions and changes” in the applicant’s evidence concerning his employment in Australia reflected “poorly on [his] credibility … generally”[33];
·found that the letter of support of Falun Gong was “produced to enhance” his claims for protection and found that he would not (and would not wish to) express sympathy for Falun Gong in a manner that might attract harm in China[34];
·rejected (including for lack of independent information) a claim that he would be seen as a threat by the authorities for “want[ing] to bring democracy back from Australia”[35].
[32] RD 148 [89]
[33] RD 148 [90]
[34] RD 148 [92]-[93]
[35] RD 149 [94]
The Tribunal found that there is no real chance that the applicant will be persecuted for any Refugees Convention reason, if he were to return to China now or in the reasonably foreseeable future[36]. The applicant did not meet the refugee criterion in s.36(2)(a) of the Migration Act1958 (Cth) (the Migration Act).
[36] RD 149 [95]
Having rejected the factual basis for any of his claims, the Tribunal was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to China, there is a real risk that the applicant will suffer significant harm[37]. The applicant did not meet the complementary protection criterion in s.36(2)(aa) of the Migration Act.
[37] RD 149 [96]
The Tribunal therefore affirmed the decision under review[38].
[38] RD 150 [97]-[100]
The judicial review application
These proceedings began with a show cause application filed on 3 July 2012. The applicant continues to rely upon that application. There are two grounds in that application in narrative form:
1. RRT breached the principle of natural justice in consider my 457 visa. RRT stated that the tribunal considers that it is difficult to understand why even his boss would choose a lengthy and expensive option to send the applicant to Australia, where there were cheaper and quicker options for him to leave China. (Decision record para 85(g)). I am not in the position to explain my boss’s arrangement and should not be discredited by it, neither should I be held accountable for the fact that RRT found it difficult to accept my boss’s arrangement for me to leave China. RRT takes into an irrelevant factor and takes advantages of my lack of knowledge of the procedures of applying for a visa. I couldn’t explain how it could be reasonable to arrange a visa. If RRT has concerns of this issue, it is appropriate for RRT to consult my boss directly or agent in China. RRT’s methods of testing my credibility is in breach of natural justice and unfair to me.
2. RRT considered my documentary evidence however concluded that my injury and my father’s death could have occurred for any number of reasons. (RRT decision record para 89). RRT failed to avail me of the benefits of doubts. During the process of refugee application, it has been difficulty to produce evidence from the country from where I have been trying to escape. RRT’s conclusion can be observed as being influenced by some pre-emptive presumption of denying the truth of my evidence, therefore, I am the victim of RRT’s such presumption and apprehended bias.
I received as evidence the book of relevant documents filed on 15 August 2012. I also received two affidavits by the applicant. The first was made on 2 July 2012 and annexed a copy of the Tribunal decision. I received [1]-[3] of that affidavit as evidence, and [4] as a submission.
I received, over the objection of counsel for the Minister, a second affidavit made by the applicant on 31 August 2012. That affidavit annexes documents in the Chinese language, and apparent translations of those documents in the English language. Also attached is a letter, purportedly from the applicant’s migration agent, dated 31 August 2012. I received that affidavit and the documents attached to it as evidence of the statements made, but not the truth of those statements. I likewise received, as an exhibit, the Chinese originals of the copies attached to the affidavit.
Consideration
By Ground 1, the applicant says the Tribunal “breached the principle of natural justice” in considering his 457 visa because it was “appropriate” for the Tribunal “to consult [his] boss directly or agent in China” and the Tribunal’s “methods of testing [his] credibility” was “unfair to [him]”.
It is difficult to discern what the applicant’s complaint is in relation to this ground. To the extent that the applicant is suggesting that the Tribunal was under an obligation to make additional inquiries in relation to the circumstances surrounding his class 457 visa application, I do not accept that the Tribunal was under such an obligation. In that regard, I agree with and adopt the Minister’s submissions.
The Tribunal is under no general obligation to investigate or make enquiries[39]. There is nothing in the circumstances of this case to suggest that there was an obvious enquiry about a critical fact which is easily ascertained such as to enliven a requirement on the Tribunal to make an enquiry[40].
[39] Minister for Immigration v SZIAI (2009) 259 ALR 429 at 436 [25]
[40] SZIAI, op cit
Further, contrary to the assertion in Ground 1, there was nothing unfair about the Tribunal testing the applicant’s credibility. As was observed in Re Refugee Review Tribunal; Ex parte H[41], where credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented, often vigorously.
[41] (2001) 179 ALR 425 at 435 [30]
I have considered the possibility that the applicant may, by Ground 1, be asserting that the Tribunal breached an obligation of disclosure in relation to information relating to his class 457 visa, or the circumstances surrounding his application for that visa. There are a number of difficulties in relation to such an assertion. The first would be to identify what the material information was. As counsel for the Minister pointed out, it is difficult, if not impossible, to identify any information in connection with that visa which answers the description of adverse information or can be distinguished from the Tribunal’s own thought processes in relation to the circumstances surrounding the application for that visa.
Secondly, the Tribunal purported to go through a process of disclosure, pursuant to s.424AA of the Migration Act, which included some discussion about events leading up to that visa application. To the extent that an obligation of disclosure might be said to have arisen, I am not satisfied that the obligation was not met. I reject Ground 1 of the application.
Ground 2 may be dealt with simply. The applicant asserts bias on the part of the Tribunal. There is no substance to that assertion. I agree with, and adopt, the Minister’s submissions in relation to that ground.
By this ground, the applicant contends that the Tribunal was biased by way of “pre-emptive presumption” and “apprehended bias”. In this way, the applicant appears to suggest error by way of both actual and apprehended bias.
No other particulars are provided. Nor has the applicant filed any evidence to support his allegation of bias.
Actual bias exists where a decision-maker has a pre-existing state of mind so as to render him or her unable or unwilling to undertake any proper evaluation of the relevant evidence[42]. Actual bias must be clearly proved. No inference of bias or pre-judgement can be drawn from the mere fact of adverse findings in the Tribunal’s reasons[43].
[42] Minister for Immigration v Jia (2001) 205 CLR 507
[43] VFAB v Minister for Immigration (2003) 131 FCR 102
Apprehended bias exists where a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided[44].
[44] Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
In the absence of both proper particulars and evidence, an allegation of bias, actual or apprehended, cannot properly be sustained. There is nothing in the record of decision to suggest that the Tribunal approached its task with anything other than an impartial mind. In the present case, the Tribunal was entitled to form the view that the documentary material submitted by the applicant was not “substantiating evidence of any weight” to the matters in issue.
Ground 2 has not been made out.
The applicant’s affidavit made on 31 August 2012 raises a further issue not raised in the application. That issue is whether some error in the Tribunal’s process can be identified in connection with documents the applicant claims he wanted the Tribunal to take into account, but which were not taken into account by the Tribunal. Those documents are a purported certificate of detention in China by the Public Security Bureau, and a purported lease agreement for collectively owned land in the applicant’s home village which may have related to the applicant’s claimed chicken farming operations.
I accept the possibility that those documents, if they are what they purport to be, may have provided some support for the applicant’s credibility in certain aspects of detail relating to his claims. It does not follow, however, that if the documents had been before the Tribunal, the outcome would have been any different. The Tribunal had numerous concerns about the applicant’s claims, many of which were completely unrelated to the facts upon which these documents hypothetically bear.
The applicant concedes that the documents were not put before the Tribunal in translated form. He asserts negligence on the part of the migration agent who was acting for him in the review before the Tribunal. The letter, purportedly from the applicant’s agent, admits negligence. That letter states that the applicant had provided documents in the Chinese language in March 2012, and that the agent had them translated into English. The agent appears to state that her assistant was meant to fax them once translated to the Tribunal, but this did not occur. The agent does not state in the letter what became of the translated documents. The letter asserts that the agent asked the applicant to mention the documents at the Tribunal hearing, and further asserts that the applicant had the originals in Chinese with him at the hearing, but the Tribunal member did not accept them or read them. The agent does not expressly assert that those untranslated documents were, at any time, offered to the Tribunal.
The applicant, in his affidavit, asserts the presiding member refused to accept or read the documents. The purported originals of the two documents were tendered. I am unwilling to accept, upon the available material, that these documents, either in their original Chinese form, or in a translated form, were ever offered to the Tribunal, or were ever before the Tribunal. The Tribunal gives a detailed account of what occurred at the Tribunal hearing and no mention is made of these documents being offered. Secondly, the English language translations annexed to the applicant’s affidavit bear a translation stamp with the date 25 August 2012. This does not support the assertion in the letter purportedly from the applicant’s agent that translated copies were available before the Tribunal hearing.
I am surprised that the agent was apparently unwilling to make statements in relation to this matter by way of affidavit and that she has not attended court in order to assist the applicant in relation to what might be a significant matter, as she is apparently still assisting him in some way as a migration agent. The letter purportedly from the agent makes statements as to what the agent understands may have occurred at the Tribunal hearing but she could have no first hand knowledge of that as she did not attend the Tribunal hearing[45].
[45] RD 74
There is no evidence of any fraud by the agent. On its face, the affidavit asserts negligence and the agent in her letter admits negligence. That may be a matter about which the Office of the Migration Agent’s Registration Authority would have an interest if a complaint were made to it or the issues were otherwise referred to it. However, I am not persuaded that any error was committed by the Tribunal.
I conclude that the applicant has failed to demonstrate any jurisdictional error by the Tribunal. It follows that the Tribunal decision is a privative clause decision and the application must be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,471 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 30 October 2012
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