SZSKF v Minister for Immigration

[2013] FCCA 846

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSKF v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 846

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – potential allegation of bias – request for impermissible merits review – alleged failure to take into account a relevant consideration – ‘mix up’ with correspondence in another matter before the Tribunal – no jurisdictional error.

Legislation:  

Migration Act 1958 (Cth), ss.36, 91R, 425, 441G, 476

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs 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
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
SZNRW v Minister for Immigration and Citizenship [2010] FCA 600
SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105
Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR[2003] FCAFC 126; (2003) 128 FCR 553 
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41;(2010) 183 FCR 575
Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142; (2006) FCR 365
SZFDE v Minister for Immigration and Multicultural Affairs [2007] HCA 35; (2007) 232 CLR 189
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407

Applicant: SZSKF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2992 of 2012

Judgment of: Judge Nicholls

Hearing date: 20 May 2013

Date of Last Submission: 20 May 2013

Delivered at: Sydney

Delivered on: 18 July 2013

REPRESENTATION

The Applicant: In person

Appearing for the Respondents: Ms S Given

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The title of the first named respondent is amended to ‘Minister for Immigration, Multicultural Affairs and Citizenship’

2. The application made on 17 December 2012 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $6,000.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2992 of 2012

SZSKF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), on 17 December 2012, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 20 November 2012, which affirmed the decision of the respondent Minister’s delegate that the applicant’s application for a protection visa be refused.

Background

1. The applicant is a citizen of the People’s Republic of China (“China”) (Court Book – “CB” – CB 2). He arrived in Australia on 4 August 2011 and applied for a protection visa on 16 September 2011 (CB 1 to CB 31, including attachments). He was assisted in lodging his application by a registered migration agent, Ms Jie Yu of Eternity International (CB 32 to CB 34).

2. The applicant’s claims to protection were set out in a “personal statement” that accompanied his protection visa application (CB 29 to CB 31). [I note that applicant’s statement produced in the Court Book appears to be an incomplete copy of the statement submitted to the Tribunal – see CB 31 and the statement as reproduced in the delegate’s decision record at CB 50 to CB 52. Therefore it has been necessary to refer to the statement, as reproduced in the delegate’s decision, for some of the applicant’s claims.] The applicant claimed that he was a “devoted Christian” and, as a result of his faith, was persecuted by the Chinese government (CB 29.1 to CB 29.3). In particular that:

   1)He was born into a Christian family. He believed in God and attended Church with his family from a young age (CB 29.5).

   2)After briefly serving in the Chinese Army and becoming disillusioned by its corruption, the applicant returned to his “hometown” (CB 30.3). He commenced working as a “contract policeman” (CB 30.5). As a result of his work as a police officer, the applicant “witnessed many Christians” being detained illegally and tortured (CB 30.5).

   3)The applicant had not been able to worship God while in the Army and he was “so relieved and happy to have chance to serve God again” (CB 30.4). The applicant attended “different churches” every Sunday (CB 30.4).

   4)On 1 May 2006, the applicant was detained by police while attending a gathering (CB 31.5). He was “brainwashed” and promised that he would not attend any further Christian gatherings (CB 31.5). After seven days, as he “was a new comer”, he was released from detention (CB 31.5). Upon his release, the applicant was dismissed by his employer (CB 31.6).

   5)In response the applicant posted articles on his “blog” that were “radical” and attacked the Communist Party (CB 31.8). Those articles were “deleted” and the applicant’s blog was “blocked” (CB 31.8).

   6)On 7 December 2007 the applicant was again arrested while attending a Church gathering (CB 51.8). As a result of his “tough attitude” he, along with several priests, was detained and tortured (CB 51.8). The applicant was imprisoned for six months and accused of “feudal superstition” (CB 51.9).

   7)In June 2010 the applicant started an “import and export company” (CB 52.1). As a result of that business he was able to travel abroad, including to America. Given his experience in America he “quit” the Communist Party on 18 March 2011 and “made a statement on the website” (CB 52.1). He also took anti-Communist Party materials from America back to China (CB 52.1).

   8)On 31 July 2011 the applicant’s home was raided by the police while he was hosting a “gathering” there (CB 52.2). He was able to escape, however the police found the anti-Communist Party materials that he had brought back from America (CB 52.2).

   9)The applicant hid at his friend’s home for two days before fleeing to Australia on 4 August 2011 (CB 52.3).

The Delegate

1. The applicant attended an interview with the respondent Minister’s delegate on 16 December 2011.

2. By letter dated 20 January 2012, sent to the applicant’s migration agent, the applicant was notified that the Minister’s delegate had decided to refuse the grant of a protection visa to him (CB 44 to CB 49).

3. The delegate noted that the applicant had failed to provide any “…corroborative documentary or photographic or other form of evidence in support of his verbal claims of being a member of an illegal Christian family church in China” (CB 60.4). Further, given that the applicant had been in Australia for six months, his failure to gather supporting documents led the delegate to doubt the “veracity of his claims overall and the genuineness of his claimed fear of persecution” (CB 60.7).

4. The delegate expressed “serious concerns” about a “Summons” (said to have been issued by the Chinese authorities and directing the applicant to attend for “interrogations”) produced by the applicant at the interview (CB 60.9). The delegate placed no weight on that document (CB 60.9 to CB 61.2). Similarly, the delegate placed no weight on “the certificate allegedly issued by the Global Center for Quitting Chinese Communist Party on 18 March, 2011”, also produced by the applicant at the interview (CB 61.5).

5. While the delegate accepted that the applicant had been brought up as a Christian and had been practising his faith since his arrival in Australia (CB 64.2), he did not accept that the applicant had been arrested in China, nor that he had been brought to the adverse attention of the Chinese police (CB 64.3).

The Tribunal

1. The applicant applied to the Tribunal for review of the delegate’s decision on 15 February 2012 (CB 66 to CB 70). He continued to be assisted before the Tribunal by the same migration agent (CB 68).

2. The applicant was invited to attend a hearing before the Tribunal scheduled for 30 July 2012 (CB 81 to CB 83). He attended that hearing and was assisted by an interpreter in the Mandarin language (CB 102 to CB 103). The hearing was heard, in part, on 30 July 2012. It was adjourned and the resumed hearing occurred on 13 August 2012 (CB 118 and CB 124).

3. Prior to the first occasion of the hearing, by facsimile transmission on 23 July 2012, the applicant provided “supporting documents” to the Tribunal (CB 90 to CB 101). Further, at the second occasion of the hearing, the applicant provided “supporting evidence”, being “url links” to several articles from his blog and a website he “set up to promote human rights, democracy, freedom and human dignity” (CB 126 to CB 127).

4. Following the second occasion of the hearing, by letter dated 22 August 2012, the applicant was invited by the Tribunal to “comment on or respond to certain information” (CB 148 to CB 151). The particulars of that information were, relevantly (CB 149.5):

   “● In relation to your claim that your home was raided by the authorities in China on 31 July 2011, at the interview with the Department on 16 December 2011 you stated that you heard a knock at the door and looked through the peephole in the door and when you saw people standing you opened the window and jumped into your neighbours place.

   …

   ● Information obtained from Whois.Net, indicates that the website you claimed to have set up, which you claimed was developed to support you friend…and contains material that opposes the Chinese Communist party, was created on 28 September 2011. It also indicates that the website was last updated on 28 November 2011. The information also indicated that the sponsoring registrar of the website is Aust Domains International Pty Ltd.

   …”

5. The applicant responded to, and commented on, that information by letter to the Tribunal dated 9 September 2012 (CB 160 to CB 176, with attachments).

6. On 20 November 2012 the Tribunal decided to affirm the decision of the Minister’s delegate. The applicant was notified of the Tribunal’s decision by letter sent to his migration agent (CB 179).

7. The Tribunal accepted that the applicant had been in the Chinese Army, had worked as a policeman, and had established a company in June 2010 ([137] at CB 216). However, the Tribunal did “not accept any of the other claims made by the applicant” ([137] at CB 216).

8. The Tribunal expressed “serious concern” about the applicant’s credibility and, ultimately, found that the applicant had “…contrived his core claims, and had provided untruthful evidence about his circumstances and past experiences of harm in China, his reasons for leaving China and his fears about returning to China” ([138] at CB 216). The Tribunal’s “main concerns” were said to be:

   1)The applicant had claimed that he travelled to Australia because of the incident on 31 July 2011 (see [3](8) above), yet his tourist visa for Australia had been granted on 1 July 2011 ([139] at CB 217).

   2)The applicant had failed to provide any employment details from June 2006 to 2010 and the Tribunal found that the explanation for this, provided by the applicant when this was put to him at the hearing, was unsatisfactory ([140] at CB 217).

   3)The applicant provided inconsistent evidence regarding the termination of his employment from the Chinese police bureau ([141] at CB 217 to [142] at CB 218). 

   4)The applicant’s “inconsistent, unconvincing and implausible evidence in relation to his claim to have suffered past harm in China in May 2006, December 2007 and July 2011” ([143] at CB 218 to [147] at CB 220).

9. In light of its concerns about the applicant’s credibility, and having regard to country information regarding the “ease with which fraudulent documents can be obtained in China”, the Tribunal found that the “Summons” provided by the applicant was fraudulent. It placed no weight on that document ([150] at CB 221).

10. The Tribunal considered the applicant’s claim to be opposed to the Chinse Communist Party, including the articles the applicant claimed to have posted on a blog and website that he claimed to have developed ([151] at CB 221).

11. The Tribunal considered documentary evidence provided by the applicant in support of his claim to have resigned from the Chinese Communist Party. In light of the applicant’s evidence in relation to that claim, the Tribunal found that the supporting documents were “not genuine”, and afforded them “little weight” ([152] at CB 221 to [156] at CB 222).

12. The Tribunal considered the applicant’s claim to have posted articles on a blog in China and, in light of the applicant’s evidence, the Tribunal formed the view that the claim was “contrived by the applicant for the purpose of bolstering his protection visa claims” ([157] at CB 223). The Tribunal did not accept that the applicant had a blog in China or that he published any political and/or religious material on that blog while in China ([162] at CB 225). 

13. While the Tribunal accepted that the applicant had purchased the domain name of the website he claimed to have set up to support a friend, the Tribunal was “…of the view that the sole purpose of this website in Australia was to strengthen his claim to be a refugee” ([167] at CB 226 to CB 227). As such, the Tribunal disregarded that conduct for the purposes of the Refugees Convention as “required” by s.91R(3) of the Act ([167] at CB 227). For the same reason, the Tribunal disregarded the applicant’s conduct in setting up a blog in Australia and publishing articles on that blog critical of the Chinese Communist Party ([168] at CB 227).

14. Having found that the applicant was not a Christian in China, and having disregarded the applicant’s conduct in Australia, the Tribunal was not satisfied that the applicant faced a real chance of serious harm if returned to China for reason of religion ([169] at CB 227). Nor was the Tribunal satisfied that the applicant faced a real risk of serious harm in China for the Refugees Convention reason of political opinion ([170] at CB 227). As a result, the Tribunal was not satisfied that the applicant was person to whom Australia owed protection obligations under the Refugees Convention ([171] at CB 227).

15. Having made that finding, the Tribunal proceeded to consider the complementary provisions of the Act (s.36(2)(aa) of the Act) ([172] at CB 228 to [180] at CB 229). In particular, the Tribunal noted that s.91R(3) of the Act did not apply under the complementary protection provisions and, as such, it turned its mind to the applicant’s conduct while in Australia ([175] at CB 228).

16. In particular, the Tribunal noted that the blog had been set up under the name “David W[xxx] 168” and that some of the articles posted on the website referred to “David W[xxx]”. The Tribunal found that there was no evidence before it that the applicant was known by that name. While the applicant’s evidence was that “David” was his English name, the Tribunal was not satisfied that “his use of the name in an email account, or in Australia, [made] him known to the authorities in China” ([177] at CB 228).

17. However, having regard to the entirety of the applicant’s conduct in Australia, and his other claims, the Tribunal was not satisfied that the applicant met the complementary protection provisions ([180] at CB 229).

18. Finally, the Tribunal noted the applicant’s claim that “he had suffered from stress, anxiety and severe headaches, which may have affected his memory” ([181] at CB 229). While the Tribunal acknowledged that the visa application process, and the associated interviews and hearings, could cause stress and anxiety, it was not satisfied that the applicant’s stress or headaches could “adequately explain the serious deficiencies and problematic nature of his evidence” ([181] at CB 230). Rather, the Tribunal considered that “…the deficiencies and problematic nature of his evidence [could] be directly attributed to the fact his claims [had] been contrived and embellished for the purpose of his protection claims” ([181] at CB 230).

Application to the Court

1. The grounds of the application to the Court are:

   “1. The Tribunal’s decision could give rise to an apprehension of bias in the mind of a reasonable observer.

   2. Judicial Error of RRT in failing to take into account a relevant consideration, namely the evidence given by the Applicant, such as, the website the Applicant set up in China for the democracy, freedom and human rights as well as the Applicant’s blogs and posted articles by him against the Chinese government in the blogs.

   3. RRT mixed up the application information belongs to the Applicant of this case (case number: 1201982) and the applicant, [name given], of other case (case number: 1209135). In addition to [name given], RRT revealed the Applicant’s information to another irrelevant person, Diana Tong. This is a tort of invasion of privacy, according to the ‘Privacy Act 1988’.

   4. The Tribunal’s over subjective in judging the consequences of posting the articles against the Chinese government in the website in China and the fear of the Applicant if he goes back to China.”

Before the Court

1. At the first Court date the applicant appeared in person and was assisted by an interpreter in the Mandarin language. On that occasion I sought to explain to the applicant that the Court was concerned with the question of whether jurisdictional error (“legal mistake”) could be found in the Tribunal’s decision. The applicant had indicated his willingness to participate in the Court’s “RRT Legal Advice Scheme” and I urged him to attend, and listen carefully, to the lawyer who would be appointed under that scheme to advise him.

2. Orders were also made on that occasion providing the applicant with the opportunity to file and serve any amended application. No amended application was filed by the applicant.

3. However, on 27 March 2013, the applicant filed an affidavit, sworn by himself on 26 March 2013, to which he attached several documents. One of those documents, a letter headed “Strong Protest against and Appeal for RRT Decision to Reject My Review Application” (the “’Strong Protest’ document”), made various complaints against the Tribunal’s decision, some of which were not pleaded in the grounds of the application to the Court (see further below). Documents which were said to be transcripts of the hearing before the Tribunal were also attached. [In this judgment, for ease, the transcript of the first occasion of the Tribunal hearing is referred to as “T” and the transcript of the second occasion of the Tribunal hearing is referred to as “2T”.] Further documents, said to be various (translated) articles, including a letter written by the applicant, downloaded from various websites, were provided. Even further, attached to that affidavit was a letter to “Dear Officers of Federal Magistrates Court”.

The Final Hearing

1. At the final hearing the applicant appeared in person and was assisted by an interpreter in the Mandarin language. Ms S Given appeared for the respondent Minister.

2. Before the Court, the applicant explained that he had submitted to the Court the bundle of documents attached to his affidavit “to prove that his application was genuine”. Despite what was put to him at the first Court date, and the opportunity given to him to obtain legal advice, the applicant plainly continued to misunderstand the nature of the proceedings before the Court. That is, that the Court was not, and could not be, concerned with the merits of his protection visa claims.

1. The Minister objected to the material being admitted as evidence. The Minister pressed that the bundle be treated as submissions only.

2. In any event, the applicant’s “Strong Protest” document, and the various documents downloaded from the internet and attached to his affidavit, are plainly directed to the applicant’s disagreement with the factual findings made by the Tribunal and its conclusion. The applicant’s attempt to press his factual claims to fear serious or significant harm, if he were to return to China, is no more than an attempt to engage the Court in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)).

3. The transcript of the two occasions of the hearing, although presented by the applicant, was on no assistance to him. The Minister sought that the transcript be treated as “a useful document by way of background” only. It is appropriate to have regard to the transcripts for the purpose of understanding some of the applicant’s complaints put before the Court.

The Applicant’s Oral Complaints

1. Once the nature of these proceedings was again explained to the applicant he said there were three “issues” that he wanted to press.

2. First, that the Tribunal sent “his information” to “someone else” and “mixed up” his information. I saw this as a reference to the complaint in ground three of the application to the Court. It is dealt with below.

3. Second, that at the hearing with the Tribunal he gave evidence that he had put certain material on a website and that that had come to the attention of the Chinese authorities. That submission is related to ground two and is dealt with below.

4. Third, before the Court, the applicant submitted that at the end of the “first” hearing with the Tribunal he had asked for a “CD of the hearing”. He complained that that request was refused. Further, that at the end of the “second” hearing he was given “two CD’s”. But he realised some time later that this was only a recording of the “second” hearing, and not the “first” hearing. Although it was not entirely clear, the applicant’s grievance here appeared to extend to a complaint that, as a result, he was unable to respond to the Tribunal’s invitation for comment from him. I will address these complaints at this point of the judgment.

5. It is important to note the sequence of events set out at [9] – [14] above. Relevantly, the following extract from the transcript of the first occasion of the Tribunal hearing is also informative (T49, line 34 to T50, line 6):

   “[Tribunal]. Ok. [applicant] there’s a lot of things that I need to go through with you and I just don’t think we’re going to be able to finish it off today. So I will need to resume this hearing another day.

   A. INTERPRETER: Okay. Can I get a copy of the recording please?

   [Tribunal]. Not until all the hearing is completely finished. Because this is a resumed hearing and it hasn’t completed. Once the full hearing is completed you will be able to request a copy of that recording, okay?

   A. INTERPRETER: Okay.

   [Tribunal]: This is just a resumed hearing for another day to be organised. [The applicant] indicated he would like a copy of the hearing and I’ve indicated that once the hearing is completed, because its not yet complete, then he can request a copy of the hearing because for now it’s just resumed. But certainly once it has been completed there is no issue with you having a copy. The Tribunal will let you adviser know.

   [Tribunal]. You do have an adviser, is that right?

   A. INTERPRETER: Yes, migration agent.

   [Tribunal]. Yes, migration agent. The Tribunal will let the migration agent know when the hearing will resume…”

   [I note that “Q” and “MS SARKOS” are used, variously, in the Transcript to refer to the Tribunal. For ease, I have used “[Tribunal]”.]

6. Noting, again, the events set out at [12] – [13] above, on 6 September 2012, by facsimile transmission, the applicant requested the recording of his hearing with the Tribunal (CB 157). The Tribunal sent the “audio CD” for both dates of the hearing to his migration agent by registered post, sent on 7 September 2012 (CB 158 to CB 159).

7. On 13 September 2012 (at 2.14pm) the Tribunal received, “by hand”, the applicant’s written response to the Tribunal’s invitation to comment on, or respond to, information (CB 160 to CB 166).

8. At its highest, before the Court the applicant’s complaint can be seen as asserting that he was denied the opportunity of properly responding to the Tribunal’s invitation to comment because he had not been given access to the “CD” of the first occasion of the Tribunal hearing such that he could respond to the Tribunal’s invitation to comment within the time provided.

9. The applicant’s complaint does not reveal jurisdictional error on the part of the Tribunal.

10. First, on the best evidence available and contrary to the applicant’s assertion now, he had the audio recording of both occasions of the Tribunal hearing, at least, some days before he submitted his written response to the Tribunal’s invitation to comment (see CB 158 to CB 159 and as set out above at [40]).

11. Second, the applicant’s response to the Tribunal’s invitation to comment makes no complaint that the Tribunal had not provided the recordings of the hearing. That is in circumstances where the letter in response to the Tribunal’s invitation to comment does volunteer another complaint, unrelated to the matters raised by the Tribunal in its letter (the “mix up” complaint, now raised in ground three - see further below). That is, the opportunity was there for the applicant to have raised the “CD” complaint before the Tribunal at an appropriate time.

12. Third and further, it must be remembered that the applicant was assisted throughout the review by a registered migration agent. That is, professional assistance was available to him to make any such complaint about the “CDs”.

13. Fourth, the applicant’s response to the Tribunal’s invitation to comment makes a number of references to what he said occurred “at the hearing”. (See, for example, CB 160.4, CB 163.9 and CB 165.5.) The applicant’s letter is, for the most part, responsive to the matters raised by the Tribunal in its invitation to comment and probative of what the transcripts reveals occurred at both occasions of the hearing.

14. Fifth, in his request for access to the recording of the hearing made on 6 September 2012 (CB 157 and [41] above) the request is said to be directed to the audio for the first occasion of the hearing. The statement is that he does not have the “recording for hearing of 30 July 2012” (CB 157). While the second occasion of the hearing is otherwise mentioned, no complaint, or even request, for the audio of that date is made.

15. Sixth, and in any event, the inconsistencies between the information accessed by the Tribunal and the evidence the applicant gave to the Tribunal appear to be based, primarily, on evidence the applicant gave at the second occasion of the hearing. That is, the recording of the “second” hearing was more relevant to the invitation to comment and the matters set out there.

16. While the subject matter of the Tribunal’s concerns, as expressed in its invitation to comment, were variously discussed at the first occasion of hearing, it was on the second occasion that the Tribunal squarely, and to some extent additionally, put its concerns to the applicant. As a result, by the time of the Tribunal’s invitation to comment the applicant would have well understood the matters of import such as to respond to them (see [90] at CB 203 to [118] at CB 210). The Tribunal told the applicant “it would write to him about some of its concerns that were discussed” ([118] at CB 210, and 2T generally).

17. Seventh, it is also clear that, at least in relation to the matters of his claimed website, the applicant well understood, from the first occasion of the hearing the Tribunal’s concerns. He provided a number of documents relevant to that matter to the Tribunal at the beginning of the resumed hearing. That was done even without access to the audio recording of the first occasion of the hearing (see [91] at CB 203, 2T1, lines 34 – 37 and CB 126 to CB 144).

18. In my view, in all the circumstances, the applicant’s complaint before the Court was not directed to any failure by the Tribunal to afford him any opportunity to properly respond to the Tribunal’s invitation to comment. Rather, the applicant was, and continued to be, aggrieved that at the conclusion of the first occasion of the hearing, the Tribunal did not immediately accede to his request and give him the audio recording for that occasion of the hearing. That does not reveal jurisdictional error on the part of the Tribunal.

The Grounds of the Application

Ground One

1. The first ground of the application asserts that the Tribunal’s decision was affected by an apprehension of bias.

2. I note the relevant authorities. In particular, that an allegation of bias attacks the very integrity of the decision maker. As such, given its serious nature, any allegation of bias must be “distinctly made and clearly proven” (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (“Jia Legeng”) 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 (“SBBS”) at [43] per Tamberlin, Mansfield and Jacobson JJ, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 (“VFAB”) and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 (“Ex parte H”).

3. Beyond making the allegation in the application, the applicant has provided no particulars to explain, or support, this complaint. Nor did he raise it orally before the Court.

4. As the Minister submits, neither the transcripts of the hearing, the Tribunal’s decision record, nor any other material before the Court gives rise to any such charge. Ground one is not made out.

Ground Two

1. Ground two asserts jurisdictional error on the part of the Tribunal because it is said that the Tribunal failed to take into account a relevant consideration. This complaint was particularised as being the applicant’s evidence, including that he had set up a website in China to promote a particular political opinion.

2. It is the case that a failure to consider a claim, or an integer of a claim expressly made or clearly arising from the material presented, may well lead to revelation of jurisdiction error (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1).

3. However, any plain reading of the Tribunal’s decision record reveals that the Tribunal did not fail to deal with any such claim. Nor did it ignore the applicant’s evidence in this regard. As the Minister submitted, the Tribunal dealt with, at some length and in great detail, all of the applicant’s evidence in support of his claim to fear harm if he were to return to China. As set out in the Minister’s written submissions at [19], the Tribunal considered each of the applicant’s claims as follows:

   “(a) the applicant’s website (see [76], [77], [81], [91], [92], [108], [109], [110], [119], [122], [130], [165], [166], [167], [175] – [179]);

   (b) the applicant’s blog (see [92], [112], [157], [168], [175] – [179]); and

   (c) the articles that the applicant posted in China (see [157]).”

4. Having regard to the Tribunal’s decision record and the material presented by the applicant to the Tribunal, it is clear that the applicant’s complaint is no more than a grievance that the Tribunal did not accept that his claims could give rise to a well founded fear of serious harm, or that there was a real risk of significant harm for the applicant if he were to return to China. That does not reveal jurisdictional error.

5. That view of the applicant’s complaint in ground two is reinforced when regard is had to the document headed “Strong Protest”, and also his letter to “Dear officers of Federal Magistrates Court” (also attached to his affidavit to the Court). In essence, the applicant seeks to challenge the factual findings made by the Tribunal and therefore seeks impermissible merits review by this ground (Wu Shan Liang). Ground two is not made out.

Ground Three

1. Ground three asserts that the Tribunal “mixed up” his case with that of another person and “revealed” the applicant’s information to a third person not concerned with his case. It is not clear whether the applicant also complains that he received a letter meant for someone else (hence the “mix up”). The ground does not assert jurisdictional error on the part of the Tribunal in this regard, but rather “a tort of invasion of privacy according to the ‘Privacy Act 1988’”.

2. Copies of two letters are reproduced at CB 145 to CB 147. The first is addressed to an immigration lawyer (Ms Tong). It advises that an applicant to the Tribunal (“the successful applicant”), with a similar first name and the same surname as the applicant in the current case, was successful before this Court and that his matter has been remitted to the Tribunal for reconsideration. It encloses a letter from the Tribunal for the successful applicant.

3. The second letter is addressed to the successful applicant and gives the same advice, and additional advice about procedural steps the Tribunal may take. Attached to that letter were certain (blank) forms and general advice about the Tribunal’s review process.

4. It is clear that the letters were relevant to another applicant before the Tribunal who had a similar name to the applicant in the current proceedings. At the time (17 August 2012), the Tribunal had not made any decision in respect of the applicant such that the Tribunal’s decision could have been the subject of a successful outcome on judicial review.

5. For the reasons set out below, and contrary to the applicant’s complaint now, no jurisdictional error is revealed in these circumstances.

6. In his letter of 9 September 2012 (received by the Tribunal on 13 September 2012 - CB 160 to CB 166), sent in response to the Tribunal’s invitation to comment, the applicant also stated the following: (at CB 166):

   “…

   In addition to the above statement, in August I received a letter from RRT. I cannot understand the specific meaning of this letter. This letter says strangely that my application number is changed to 1209135. This letter also has mentioned something about Federal Court regardless the fact that my hearing with RRT was just held on 13 August 2012. Also this letter mentioned a name ‘[name similar to applicant’s name]’. I do not know it is a typing error or it is another person whose name is ‘[name similar to applicant’s name]’. There is also another page addressed to a solicitor ‘Ms Diana Tong’. My address in this letter became:

   [Name similar to applicant’s name], Unit 12, 4 Landenburg Place, GREENWICH, NSW 2065

   [Name similar to applicant’s name], 7/46 Alt Street, ASHFIELD, NSW 2131

   I have never lived at the address of Unit 12, 4 Landenburg Place, GREENWICH, NSW 2065. Neither I had hired a solicitor whose name is ‘Ms Diana Tong’. I simply do not understand what this letter is all about. Is it a mistake in RRT work? Or has my personal information and my application information been disclosed to an irrelevant third party?

   …”

7. A Tribunal officer responded to this by letter sent to the applicant and dated 17 September 2012 (CB 178):

   “…

   Reference is made to your correspondence dated 9 September 2012 and your statement in regards to receiving a letter which was pertaining to an unrelated case. This letter was sent to the correct address and had been mistakenly given to you instead of the intended person who also resided at 7/46 Alt Street, Ashfield address.

   The Tribunal has consistently forwarded all your documents to your authorised recipient, as per your instructions to the Tribunal and at no time has your personal information been disclosed to an unauthorised third party.

   We kindly request that you return the original unrelated letter to the Tribunal immediately.

   …”

8. What can be drawn from this is that at some time during the course of the conduct of the review of the applicant’s application before the Tribunal, he resided at the same address as another applicant before the Tribunal who had a similar name to him. [The surname was identical. The applicant’s first name was identical to the successful applicant’s first name to the extent that both had the same four letters, with the successful applicant having a “g” at the end of his first name.]

9. The letter addressed to Ms Tong and the letter meant for the successful applicant were sent to the applicant’s (and the successful applicant’s) Ashfield address. There is no evidence before the Court that any of the applicant’s personal information, identity or residential details were given to Ms Tong, the other person, or indeed anyone else.

10. At its highest, in these circumstances the applicant was given a letter meant for someone else. While that person’s “privacy” may have been breached, that is not the case with the applicant’s privacy.

11. For current purposes, on the evidence before the Court, all correspondence relating to the applicant’s case was properly given s.441G of the Act sent to his migration agent at her address for service. (See for example CB 68, CB 71 and CB 81).

12. Further and importantly, as the Minister submits, even if some “mix up” had occurred, in all the circumstances, that it had no practical effect on the review. There is nothing to show that the Tribunal member (as opposed to a Tribunal officer) was confused, or “mixed up” the applicant’s claims with those of any other applicant. As the Minister submits, the mere sending of incorrect letters does not, of itself, give rise to jurisdictional error (SZNRW v Minister for Immigration and Citizenship [2010] FCA 600). The applicant received from the Tribunal all correspondence intended for him and relevant to his application for review.

13. I note that applicants before the Tribunal are entitled to feel that all reasonable steps are taken by those who administer the workings of the Tribunal to ensure that the confidentiality of the information given by them to the Tribunal is maintained and protected. That would extend to the fact that they are an applicant before the Tribunal and their residential address.

14. Ground three does not reveal jurisdictional error on the part of the Tribunal.

Ground Four

1. In ground four the reference to the Tribunal being “over subjective” may, inferentially, seek to complain that the Tribunal did not bring an open mind to the proceedings. What particularity is given to this complaint appears to relate to the Tribunal’s view of the lack of adverse consequences said to arise from the applicant’s claim that he posted articles “against” the Chinese government on a website “in China”.

2. To the extent that this is some attempt at an allegation of the apprehension of bias, or even bias, it fails for the reasons set out above in relation to ground one. (See Jia Legeng at [69] per Gleeson J, SBBS at [43] per Tamberlin, Mansfield and Jacobson JJ, VFAB and Ex parte H).

3. To the extent that this may relate to the applicant’s conduct in setting up websites and blogs while in Australia, and posting adverse articles there, the Tribunal accepted that such conduct occurred. However, it disregarded that conduct for the purposes of the Refugees Convention pursuant to s.91R(3) of the Act ([165] at CB 226 to [168] at CB 227).

4. The Tribunal’s approach here was orthodox and consistent with relevant authorities (SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105). Further, the Tribunal properly considered the application of s.36(2)(aa) of the Act in this regard and noted that s.91R(3) of the Act did not apply to consideration of s.36(2)(aa) of the Act ([180] at CB 229). No jurisdictional error is revealed.

5. In relation to the “posting” of political articles on his blog in China, the Tribunal rejected the applicant’s claims, and indeed his factual assertions of past harm, for reasons probative of the material before it (see, in particular, [157] at CB 222). The Tribunal

   ’s findings that the applicant’s claims lacked credibility and “were contrived by the applicant to suit his purposes” ([150] at CB 221 and generally at

   
   

   [137] – [149]) were all findings reasonably open to it on what was before it and for which it gave cogent reasons. No jurisdictional error is revealed in these circumstances. In all, the applicant, again, seeks impermissible merits review in ground four (Wu Shan Liang).

1. The Minister suggests that the applicant’s ground may also be some attempt to assert illogicality, or irrationality, on the part of the Tribunal’s reasoning. If so, no such error is apparent (see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367).

2. In the “Strong Protest” document, the applicant also complains about the conduct of the hearing by the Tribunal on the first occasion of the hearing (30 July 2012). The applicant complained that the hearing on that occasion was overly long (it lasted for six hours) and that he was not given a “break”. He claimed this caused serious headaches and put him “under bad mental status”.

3. The applicant’s evidence before the Court reveals that the hearing commenced at 10.20am and ended at 4.10pm (T1 and T50). The Tribunal’s record reveals that, contrary to the applicant’s assertion, a number of “breaks” occurred (CB 103) for a total of about 40 minutes. The transcript tends to support the Tribunal’s record. For example, some “meal break” took place (see T26, lines 32-37).

4. It could be that the applicant’s complaint can be seen as a failure by the Tribunal to provide him with a fair opportunity to give his evidence because the failure to provide breaks inhibited, or affected, his capacity to participate in the hearing in a meaningful way (Minister for Immigration & Multicultural & Indigenous Affairs v SCAR[2003] FCAFC 126; (2003) 128 FCR 553 and Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41;(2010) 183 FCR 575).

5. However, as the Minister submits, any failure of procedural fairness pursuant to s.425 of the Act requires a finding that the applicant’s capacity to participate was so significantly diminished that he was unable to properly participate in the hearing (Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142; (2006) FCR 365 at [102] per French J, approved by the High Court on appeal: SZFDE v Minister for Immigration and Multicultural Affairs [2007] HCA 35; (2007) 232 CLR 189).

6. The evidence before the Court does not support such a finding. There were “breaks”, or short adjournments, during the first occasion of the Tribunal hearing. Second, there is nothing in the transcript of the hearing provided to the Court by the applicant to support any such finding. In any event, and even further, the applicant had a second opportunity at the resumed hearing. He makes no similar complaint in relation to that hearing. Importantly, there is nothing to show that the applicant at the relevant time (at the first occasion of the hearing before the Tribunal), nor subsequently, made any such complaint to the Tribunal. Nor that his migration agent made any such complaint.

7. The applicant also complains, in his “Strong Protest” document, about the impact on his health and his “very bad mental status” as a result of the Tribunal’s claimed conduct. However, as the Minister submits, there is no evidence from the applicant to go to the question of whether his capacity to meaningfully participate at the first occasion of the Tribunal hearing was affected. Nor, if there was any such effect, its extent.

8. Before the Tribunal the applicant did complain of “stress, anxiety and severe headaches”. However, it would appear that this complaint did not specifically derive from the length of the first occasion of the Tribunal hearing. Rather it was put by the applicant as a pre-existing condition and in explanation of serious deficiencies, and problems, with his evidence. The Tribunal considered that explanation but was ultimately of the view, based on its assessment of the applicant’s evidence, that these deficiencies were due to “the fact his claims have been contrived and embellished for the purposes of his protection claims” ([181] at CB 230). That finding was reasonably open to the Tribunal on what was before it.

9. It must be acknowledged that one of the “restraints” on Courts conducting merits review, is that ultimately it is the administrative decision maker who is in the best position to make such findings, including findings as to the applicant’s capacity to participate effectively at the hearing (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407: the decision maker “par excellence”). In any event, the state of the evidence before the Court does not reveal any denial of a fair hearing in this regard.

Conclusion

1. None of the grounds of the application to the Court have been made out. Nor is any jurisdictional error revealed by the applicant’s complaints to the Court made orally and in his “Strong Protest” document. In the circumstances, the application to the Court should be dismissed. I will make an order accordingly.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 18 July 2013