SZVQU v Minister for Immigration

[2016] FCCA 852

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVQU v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 852

Catchwords:
MIGRATION – Judicial review of decision of Refugee Review Tribunal (Tribunal) – whether Tribunal interrupted applicant while giving evidence – whether Tribunal manifested bias towards the nationality of which the applicant was a member – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Applicant: SZVQU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3172 of 2014

Judgment of: Judge Manousaridis

Hearing date: 18 March 2016

Date of Last Submission: 18 March 2016

Delivered at: Sydney

Delivered on: 15 April 2016

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents:

Mr M Glavac of

Clayton Utz

ORDERS

1. The application is dismissed.

2. The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3172 of 2014

SZVQU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of the Peoples’ Republic of China (China). He seeks judicial review of the decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).

Claims for protection

1. In the applicant’s application for a Protection visa,[1] the applicant claimed to fear persecution because he refused to work as an undercover informant in Australia for Chinese authorities.

   [1] CB1-10

2. According to his application, the applicant was raised in Fujian Province, China until he came of school age in 1997. The applicant’s uncle, who had been a member of the People’s Liberation Army of China, and later became a police officer, persuaded the applicant’s parents to enrol the applicant in a primary school near the uncle’s home. The applicant’s parents agreed and “from then on” the applicant lived with his uncle.[2]

   [2] CB7

3. In September 2006 the applicant was accepted to high school and lived on campus with other pupils. The applicant’s high school was close to the applicant’s uncle’s workplace, and they continued to keep in touch. Around this time the applicant became interested in studying overseas, but his parents were “ordinary farmers” who were unable to fund such study.

4. In December 2006 the applicant and his parents attended an interview with three officers at the school principal’s office. One was from Fuqing Public Service Bureau (PSB), the other two were from the Fuqing Municipal State Security Bureau. The officers told the applicant he had been recommended to attend a special training class at Fujian Police College, and that they could arrange for the applicant to study in Australia. The applicant and his parents accepted the proposal.

5. On 2 January 2007 the applicant began attending the special training class. The applicant learned the class was organised by the Police Education Department for the purpose of providing special training for students who were selected to work for the Ministry of State Security as informers overseas. The applicant was one of 36 students in the class. The applicant stayed at the college for six months. He was not permitted to leave without permission, or to disclose to anyone else any details about the class.

6. In July 2007 the applicant received his student visa that had been organised by the Police Education Department. Before he left China, the three officers again interviewed the applicant. The officers informed the applicant of the detailed arrangements for his departure from China and arrival in Australia. They told the applicant that a young man, Mr L, would accompany the applicant to Australia.

7. On 31 July 2007 the applicant arrived in Sydney with Mr L and they were collected by two people, a woman and a man, who arranged accommodation in Auburn for the applicant and Mr L. The applicant was not told the Chinese names of the man and woman, nor was he provided with their contact details. The man and woman continued to meet with the applicant and Mr L once or twice a month. The man and woman asked for intelligence, such as information about Chinese students, and warned the applicant and Mr L not to let others know about their involvement with the Ministry of State Security. 

8. After the applicant had the opportunity to understand democracy and freedom since he arrived in Australia, the applicant became dissatisfied with the “dictatorship” of China. The applicant told the man and woman he would no longer work as an informer.  The applicant told the Tribunal that this occurred in the middle of 2008. In response the man and woman put further pressure on the applicant, and to avoid them he frequently moved and terminated his study. 

9. From the middle of 2008, officials from the State Security Bureau and PSB approached the applicant’s parents in China to force the applicant to resume his work for the Ministry of State Security and his contact with the man and woman. The officials also sought to contact the applicant through his uncle and approached Mr L’s parents. The officials told the applicant’s parents that they would never let the applicant off unless the applicant and Mr L repaid the money which the authorities had spent for their study in Australia. In the following years the applicant did his best to find jobs to send money back to China, but he found that difficult.

10. In 2011 Mr L informed the applicant that he would be returning to China as his parents had paid RMB 500,000 to the authorities, and the authorities had promised not to give Mr L “any troubles”. Mr L returned to China in September 2011.

11. In June 2013, the applicant’s uncle discovered an underground casino connected with illegal activities being run by Mr Y, who was a head of the “Black Society”. The applicant’s uncle reported Mr Y to the president of the PSB. The applicant’s uncle was arrested by Chinese authorities who alleged he was involved in illegal activities against state security. The applicant’s father was also arrested and detained for almost three weeks. During his detention, the applicant’s father was subjected to “inhuman treatments” and torture in an attempt to expose and denounce the applicant’s uncle to “instigate” the applicant “to become a “traitor” to the Ministry of State Security”. Unable to resist, the applicant’s father complied.

12. In August 2013 the applicant’s uncle’s wife was notified by the PSB that the applicant’s uncle had committed suicide in fear of the punishment at the detention centre. The applicant however came to know the truth behind his uncle’s death; Mr Y was connected with the vice mayor of the Fuqing Municipal Government, and the uncle’s findings and investigation had threatened their benefit and safety. The applicant’s uncle was therefore killed to “keep his mouth shut”. The applicant also learned before his uncle’s death that Mr L had been arrested in secret on his return to China, and sent to a labour reform camp.

13. At the interview before the delegate, the applicant provided three documents in support of his claims. One related to the applicant being a student, another to his uncle’s employment, and the third purported to be his uncle’s death certificate.[3] At the hearing before the Tribunal the applicant provided six colour photographs in support of his claims. The applicant claimed some of the photographs depicted Mr L and a woman who was employed by a Chinese intelligence agency, and who had attended the police college with him. The applicant claimed to be in contact with the female intelligence officer.[4]

    [3] CB103, [19]

    [4] CB104, [24]

Tribunal’s reasons

1. The Tribunal found the applicant was not a credible witness, and that he fabricated his claims. The Tribunal relied on a number of matters.

   a)First, despite claiming to have received specialised training in China for his role as an informant, the applicant was unable to provide to the Tribunal a detailed account of the training program, or of his activities in Australia.[5] Instead, the applicant’s examples were limited to “walking around and listening to people’s conversations and engaging in conversations without providing any details other than to claim he was looking for people engaged in anti-Chinese government activity or Falun Gong activity or pro-Taiwan or pro Tibet activity.”.[6] The Tribunal found the applicant’s claims surrounding his informant activities and about how he carried out those activities to be lacking in detail and very general in nature.[7] The Tribunal also found the applicant “provided no detailed overview of the skills and techniques that he used as an informant and that reasonably could have been expected to be discussed by a person who had claimed to have undertaken at least six months of specialised training”.[8]

   b)Second, the applicant’s claims relating to his uncle were “unclear”. They were also inconsistent with the uncle’s death certificate the applicant provided to the delegate. The death certificate recorded high blood pressure and alcoholism as the cause of death. The applicant asserted he had been told by his aunt that his uncle had committed suicide when in fact he was murdered and, on this basis, he did not accept the causes of death as described in the death certificate.[9]

   c)Third, the Tribunal was not satisfied with the applicant’s explanation for his delay in applying for a protection visa. [10]

   [5] CB110-112, [46], [48]

   [6] CB110, [46]

   [7] CB111, [47]

   [8] CB111, [47]

   [9] CB109, [40]; CB112, [49]

   [10] CB112-113, [50]

2. The Tribunal concluded the applicant did not satisfy the criteria specified in s.36(2)(a) of the Act and was not a person in respect of whom Australia has protection obligations pursuant to s.36(2)(aa) of the Act.[11] The Tribunal was not satisfied the applicant came to Australia as an informant, that the applicant undertook special training before he came to Australia in 2007, that the applicant’s uncle was murdered, or that the woman with whom the applicant maintained contact was a Chinese intelligence agent.[12] Nor was the Tribunal satisfied Mr L was as an informant, that Mr L was arrested and sent to a labour camp on his return to China, that the applicant’s father was detained, interrogated and beaten, leading to his false confession, or that RMB 500,000 was demanded from the applicant’s parents as payment for the applicant’s study in Australia.[13]

   [11] CB114, [56]-[57]

   [12] CB113, [52]

   [13] CB113-114, [53]

Course of hearing

1. As is my practice in hearings where an applicant is not legally represented, I asked the interpreter to interpret to the applicant each of the grounds contained in the application, and, after each ground was interpreted, I invited the applicant to make submissions. In the course of the applicant’s making submissions in relation to ground 1 and then ground 2, it was apparent the applicant was relying on matters that he claimed had occurred before the Tribunal. The applicant claimed that during the hearing before the Tribunal, the Tribunal member prevented the applicant from giving evidence, and used a tone which, the applicant submitted, indicated the Tribunal member was biased against Chinese people.

2. In the course of his submissions, the applicant applied for an adjournment to enable him to obtain the audio recording of the hearing before the Tribunal. I was not satisfied the applicant had given an adequate explanation for his not having obtained an audio recording. I decided not to grant the adjournment the applicant sought, but instead directed the Minister to provide the Court with the audio recording of the hearing before the Tribunal. I did so on the basis that, if the audio recording did not arguably support the applicant’s claims, I would decide the applicant’s application for review on that basis. If, on the other hand, the audio recording arguably supported the applicant’s claims, I would notify the Minister of that fact, and then afford the Minister and the applicant a further opportunity to make submissions.

3. Pursuant to my directions, the Minister provided a disc containing the audio recording of the hearing before the Tribunal. I have listened to the recording, and I have marked the disc containing the recording as an exhibit.[14]

   [14] Exhibit A

Grounds of application

1. The application filed by the applicant states four grounds of application.

Ground 1

1. The first ground of application is:

   During my interview, I felt by prejudice and discrimination from the Tribunal.

2. Ground 1 does not identify the matters on the basis of which the applicant felt such prejudice and discrimination. The applicant, however, made submissions in relation to ground 1. He submitted the Tribunal member did not look at the applicant directly when the member asked him a question. He submitted this indicated bias because, normally, when two people communicate with each other, they look into each other’s eyes. I asked the applicant whether he raised that issue with the Tribunal member. The applicant said he did not raise the matter with the Tribunal member because he was afraid to do so. In answer to my question about what he feared would happen if the applicant had raised the issue with the Tribunal member, the applicant said the Tribunal member could have refused him on the spot.

3. The applicant did not give sworn evidence that the Tribunal member did not look at the applicant when he asked the applicant questions. Even if the applicant had given such evidence, I would not have accepted it. As I find later in these reasons, the applicant’s recollection, as he purported to communicate that recollection from the bar table, of what occurred at the hearing before the Tribunal, is unreliable. Further, from the audio recording, the applicant at times manifested forthrightness. I will here give six examples.

   a)At around 2:03:38 into the hearing, the applicant said to the Tribunal member: “can you listen to my explanation?”. That was said, not in response to any interruption by the Tribunal member, but to the Tribunal member’s asking a question. The Tribunal member responded that he had been listening to the applicant’s explanation.

   b)At around 2:05:37 into the hearing the applicant suggested that the Tribunal member may have misunderstood the meaning of “studying” and “terminating studying”. In response to the Tribunal member’s saying he has not misunderstood those words, the applicant said: “Then you are not reasonable”.

   c)Commencing at around 2:11 into the hearing, the applicant informed the Tribunal member that the applicant had not finished talking, and requested the Tribunal member listen to him. In response to the Tribunal member saying he was interested in the applicant answering some questions, the applicant interrupted the Tribunal member and said he understood what the Tribunal was interested in, “but I hope you can finish listening to me first”. The applicant again interrupted the Tribunal member when the Tribunal member attempted to state the question he wanted the applicant to answer, and the applicant said he was answering that question and asked: “how can I talk to you”. Then, in response to the Tribunal member’s question: “do you wish to say something in relation to that?” the applicant said: “I was telling you and you keep interrupting me so I hope you do not interrupt me”. The applicant then gave the answer he claimed the Tribunal member had prevented him from giving.

   d)Commencing at around 2:28 into the hearing, in response to the Tribunal member saying that he had tried to explain to the applicant on a number of occasions that he was asking the applicant a number of questions about his claims, the applicant said he was answering the Tribunal’s questions, but the Tribunal member kept interrupting him. The applicant also said that the Tribunal member did not want to listen to the applicant’s answers. The applicant said he wished the Tribunal member would let the applicant finish everything in one go, and the Tribunal member could then continue with his questions.

   e)At around 3:04:35 into the hearing the applicant stated to the Tribunal member that he interrupted the applicant.

   f)At around 3:11:28 into the hearing the applicant said:

   It’s not fair, it’s not fair. I did not answer my question, and you stopped me and you change another topic, it’s not fair.

4. Given these examples of the applicant’s forthrightness during the hearing, it is unlikely that, if the applicant had any issue with the Tribunal member’s not looking at the applicant when asking questions, the applicant would have said nothing about it. There is nothing in the recording I have heard which indicates the applicant said anything about the Tribunal’s not looking at him.

5. In any event, even if the Tribunal member did not look at the applicant, that by itself could not reasonably ground an inference of actual bias, or give rise to a reasonable apprehension of bias. It is not within the ordinary experience of human affairs that one person’s not looking at another person when communicating with that person suggests that the first-mentioned person is biased against the second-mentioned person, or that the first-mentioned person has some animus against the second-named person. A more reasonable inference would be that the first-mentioned person is shy or has something to hide or is embarrassed.

6. Having heard the audio recording of the hearing before the Tribunal, there is nothing to suggest the Tribunal was shy, or had something to hide, or felt embarrassed, or displayed any animus towards the applicant. The recording of the hearing reveals a patient, methodical, polite, yet searching examination by the Tribunal member of the applicant’s claims. There is nothing in the recording that could reasonably suggest the Tribunal was prejudiced towards the applicant, or discriminated against the applicant. The recording also reveals the applicant, with the assistance of an interpreter, had no difficulty in understanding the questions the Tribunal member asked of him.

7. Ground 1, therefore, fails.

Ground 2

1. The second ground of application is:

   During my interview, He [sic] has done some gestures told me to stop talking, He [sic] can’t deprive me of the right to speak.

2. In relation to this ground, the applicant submitted that, after completing the first sentence of his answer to a question the Tribunal member asked about the education the applicant received in China, the Tribunal member made a gesture to the applicant which indicated to the applicant that the Tribunal member wanted the applicant to stop answering the question. The applicant further said that as the Tribunal member was gesturing, the Tribunal member made noises to the effect of “ugh, ugh”. The applicant, therefore, stopped answering the question before he got to his second sentence.

3. In answer to a question I asked, the applicant accepted that, at the end of the hearing, the Tribunal member asked the applicant whether he wished to say anything further.  When I suggested to the applicant that he therefore had an opportunity to say what he was earlier interrupted from saying, the applicant said that the Tribunal did not ask additional information “for those”. The applicant also claimed, however, that he asked the Tribunal member why he had stopped the applicant from answering questions. The applicant also told me that, as the applicant was about to leave, the Tribunal member “kept stopping me from talking”.

4. As I have already noted, I have listened to the audio recording. I paid particular attention to that part of the hearing in which the Tribunal asked the applicant questions about the training the applicant claimed he received in China. That took place from 1:33 to 1:45 into the hearing, and between around 3:02:51 to 3:24:20 into the hearing. I did not discern the Tribunal member interrupting any answer the applicant gave. On the contrary, the recording reveals the Tribunal member was pressing the applicant to give details of the training the applicant claimed he undertook. There is also nothing that I heard in the recording of the hearing to suggest that, as the applicant was about to leave, the Tribunal member “kept stopping me from talking”.

1. The applicant did claim to the Tribunal that the Tribunal interrupted the applicant, and changed topics. The applicant made these claims when the Tribunal member was putting to the applicant his concerns that the evidence the applicant gave about the training he claimed he received in the Fuqing Police academy was general, and lacking in detail. It was in that context that the applicant said: “It’s not fair, it’s not fair. I did not answer my question, and you stopped me and you change another topic, it’s not fair”. The applicant had no justification for making these claims. Nevertheless, at 3:11:34 into the hearing, the Tribunal member asked the applicant whether he wished to say anything further about the training the applicant claimed he undertook at the Fuqing police academy. From that point until 3:24 into the hearing, the applicant said what he wanted to say about the training he received. The Tribunal member intervened on one occasion, but that was to clarify an apparent inconsistency. The applicant began by stating that the typical day at the Fuqing Police academy began at 10.00 am, but he later referred to an activity beginning at 4.30 am. When the Tribunal raised this apparent inconsistency, the applicant said the day began at 4.30 am. The applicant, however, here again complained that the Tribunal member “interrupted me again”.

2. Save for this and two other exceptions, the Tribunal member did not interrupt any answer the applicant gave at any stage of the hearing. The first of the other exceptions is the exchange between the applicant and the Tribunal that I have set out in paragraph 23(c) of these reasons. The Tribunal did interrupt the applicant. The applicant, however, after he complained the Tribunal member interrupted him, returned to answering in full the question the applicant complained the Tribunal member interrupted him from answering.[15] The second of the two exceptions is the exchange to which I refer in paragraph 23(d) of these reasons. Again, after the applicant complained about the Tribunal member’s interrupting the applicant’s answer, the applicant gave the answer he wished to give.[16]

   [15] This occurred at around 2:11:19 into the hearing.

   [16] This occurred at around 2:30:35 into the hearing.

3. There are also a few occasions when the Tribunal member began to talk either as the interpreter began to speak or when the applicant began to speak. The Tribunal member, however, stopped himself saying what he intended to say to permit the interpreter or the applicant to continue saying what he or she intended to say.

4. The Tribunal’s interruptions of the applicant, whether considered alone, or in the context of the hearing as a whole, cannot reasonably be construed as manifesting any bias or unfairness towards the applicant. Although he was on occasion interrupted, the applicant did give the answers he wanted to give. Further, at the end of the hearing, the Tribunal asked the applicant whether there were any issues the applicant wanted to put to the Tribunal member, or any submissions he wanted to make, or whether there was anything else he wanted to say. The only matter the applicant raised was a question about why, at the beginning of the hearing, the Tribunal member showed the applicant the Refugees Convention or documents relating to that convention.

5. Finally, I did not hear the Tribunal member make any sound to the effect of “ugh, ugh”.

6. Ground 2, therefore, also fails.

Ground 3

1. The third of application is:

   Tribunal member is not fair and reasonable. He dislike Chinese from the talk.

2. In response to questions from me about the matters on which the applicant relied for this ground, the applicant said it was the manner and the way in which the Tribunal member talked. He submitted it was something one could sense. He submitted the Tribunal “looked down upon us like you are Chinese, you applied to be a refugee and I am the Tribunal”.

3. Having listened to the audio recording of the entire hearing, I find there is nothing the Tribunal member said, or anything in the Tribunal member’s tone or modulation of voice, from which it could reasonably be suggested the Tribunal did not like Chinese people or gave the impression of his not liking Chinese people. 

4. Ground 3, therefore, fails.

Ground 4

1. The fourth of ground of application is:

   The decision time was very short. I think he made the decision without careful consideration responsibly.

2. The applicant made no submission in relation to this ground.

3. The hearing before the Tribunal took place on 13 October 2014, and the Tribunal made its decision on 23 October 2014. There is nothing in these bare facts from which any jurisdictional error by the Tribunal is capable of being inferred. Ground 4, therefore, also fails.

Other matters

1. The applicant also submitted that throughout the hearing the Tribunal member interrupted the applicant. The applicant on a number of occasions asserted to the Tribunal member that he had interrupted the applicant. Apart from the exceptions I have already referred to, the recording of the hearing does not bear this out. As I have already said, the Tribunal member conducted a patient, methodical, polite, yet searching examination of the applicant’s claims. In short, the Tribunal conducted the hearing fairly, and in conformity with the statutory tasks it was required to undertake when reviewing the applicant’s claim for review.

Disposition

1. I propose to order that the application be dismissed. I will also order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 15 April 2016