SZMQG v Minister for Immigration & Anor [2009] FMCA 699 (20 July 2009)

Last Updated: 29 July 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMQG v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 699

MIGRATION – Review of RRT decision – where applicant granted a further hearing after expressing her unease before the Tribunal Member – whether allegations of bias amounted to more than subjective feelings in the applicant – request for “additional information” considered.

Migration Act 1958 (Cth), s.424B

Minister for Immigration v Jia Legeng (2001) 205 CLR 507 WAKS v Minister for Immigration [2006] FCAFC 32 Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 SZLPO v Minister for Immigration [2009] FCAFC 51

Applicant:

SZMQG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2089 of 2008

Judgment of:

Raphael FM

Hearing date:

20 July 2009

Date of Last Submission:

20 July 2009

Delivered at:

Sydney

Delivered on:

20 July 2009

REPRESENTATION

For the Applicant:

In person

Solicitors for the First Respondents:

DLA Phillips Fox

ORDERS

(1) Application dismissed.
(2) Applicant to pay the First Respondent’s costs assessed in the sum of $5,500.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2089 of 2008

SZMQG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China who arrived in Australia on 31 October 2007. On 14 December 2007 she applied to the Department of Immigration & Citizenship for a protection (Class XA) visa. On 7 March 2008 a delegate of the Minister refused to grant a protection visa and on 4 April 2008 the applicant applied for review of that decision from the Refugee Review Tribunal.
2. The Tribunal invited the applicant to a hearing, which she attended with her son. At the end of the hearing the applicant and her son wrote to the Tribunal requesting that a new hearing be instituted with a different Tribunal member. That letter was responded to by the Principal Member on 21 May 2008. The response was in the form of a letter [CB 104] which said:
   • “At my request, a Senior Member of the Tribunal has listened to the audio recording of your hearing and made a report to me. I have carefully considered the arguments set out in your letter, the attached letter from your son and the Senior Member's report. In all of the circumstances, I do not think it necessary that the matter be reconstituted.
   • However, I am advised that the Presiding Member considers that he should provide a second hearing to ensure that you have had a full opportunity to respond to the material that set out his concerns about your claims. The New South Wales registry will contact you in due course about arrangements for a second hearing.”

The second hearing was held, which was also attended by the applicant and her son. On 3 July 2008 the Tribunal determined to affirm the decision not to grant a protection visa and handed down that decision on 15 July.

3. The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations were put in a rather confusing manner but were clarified, to my mind, excellently by the Tribunal at [CB 240-241] [35]. Essentially, her claims arose out of two events. Firstly, the unfortunate death of her brother on 25 July 1999 by some local gangsters and secondly what occurred to her father following that death. It appears that the family were not satisfied with the results of the trial of the offenders and petitioned Beijing. He did this over several years and was apparently badly treated. Finally, he went to Beijing on 28 February 2007 and disappeared, only to be found in August 2007 at a local Fuqing Hospital seriously ill. He died about 10 days later. The applicant claimed that following the death of her father she organised a protest to go to Fuzhou on 28 September 2007. The truck in which these people were travelling was stopped and they were all arrested. She said that she was detained until 12 October 2007 when a very substantial bribe was paid by her mother to obtain her release. She left China on 31 October for Australia where her son had been studying for some time.
4. The Tribunal found that it was unable to accept the applicant's evidence, believing that she had constructed a narrative around her brother's murder and her father's death to assist her claims for protection. It made these findings on a basis of a number of inconsistencies in her claims and the rather confused manner in which she made them. In addition, the Tribunal obtained from the Department details of the son's student visa application form, which seemed to indicate a rather different history of employment than that given to the Tribunal by the applicant. In particular, the applicant claimed to be an illiterate who had run a seafood business when the application form indicated that she was a manager of a real estate company.
5. The major ground upon which the applicant sought that this Court provide a review of the Tribunal's decision was the applicant's very strong view that the Tribunal member was biased against her. This was something that had been raised in the original letter to the Tribunal and which she holds to today. I think the major difficulty with the applicant's claim about this is that it seems to depend very much on her subjective view of the Tribunal member's opinion of her and perhaps his demeanour. She does not suggest there was anything in the manner in which he spoke and so the Court will not be assisted by listening to a tape or reading a transcript, neither of which have been provided. Before me today the applicant said that it was in the Tribunal member's eyes. She said that she felt scared of his eyes, that when she saw his eyes she could not say anything. But she was really scared of him and could not make proper oral submissions. She was particularly concerned about the second hearing because she seemed to be saying to me that after the complaint had been made she thought that she would not get a fair hearing the second time around.
6. The Court understands the concerns expressed by the applicant. Subjective feelings about persons with the authority of a Tribunal member may well be extreme, particularly if, as the Tribunal member suspected and as would appear, the applicant really does have little education. He is a person in authority who has the ability at the stroke of a pen to grant her the right to remain in this country with her son. But actual bias is not an easy thing to establish. Allegations of bias must be distinctly made and proven; Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J. In WAKS v Minister for Immigration [2006] FCAFC 32 the Full Court Nicholson, Lander and Siopis JJ said at [30]:
   • “There is a suggestion in one paragraph of the appellant's written submissions that the RRT so conducted itself as to lead to the inference of an apprehension of bias: NADH of 2001 v Minister for Immigration [2004] FCAFC 328; [2004] 214 ALR 264 at [115] per Allsop J. In that authority it is made clear that what is necessary is that it is shown that the conclusions of the RRT had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly. There is, however, nothing before us or in the decision of the RRT to attract the application of those criteria. Although the primary judge found the first claims by the appellant "rambling and disconnected" and referred to lack of focus in written submissions by the appellant, it is apparent from the RRT's reasons that it tried to distil the claims made by the appellant and consider them against the requirements of the Migration Act 1958 (Cth) and the Convention.”
7. It seems to me what was said in that case would apply equally to this. Insofar as the applicant complains of bad treatment by the Tribunal, this is not borne out by the decision itself and the opportunities given by the Tribunal [CB 235-238] to gather herself when she became upset and to provide the Tribunal with further information or submissions at the appropriate times.
8. The applicant said to me today that she felt that the Tribunal had made a mistake and that this was established by the fact that a second hearing was given. She did not actually tell me what the mistake was. But I know that the Tribunal member appears to have accepted that he may not have given her an ample opportunity to explain herself and that is why the second hearing was held. If there was any mistake by the Tribunal, it appears to have been rectified before the decision was made.
9. In the application made to this Court there are a number of grounds put forward. She claimed that the Tribunal had failed to consider a claim, but what it seems to me that she really meant was that the Tribunal did not consider the claims favourably to her. She has not pointed out to me any claim made by her in any prior documentation or at the hearing that the Tribunal did not refer to or consider. The second ground relates to the matters that I have already discussed concerning the request for a second Tribunal hearing. The third claim suggests that the Tribunal should have told the applicant how to articulate her claim. But this is not the responsibility of the Tribunal. It is no part of the Tribunal's task to make out the applicant's case for her or to tell her how to present it; Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 per Gummow and Hayne JJ at [187]. In grounds 4 and 5 the applicant complains about the Tribunal using inconsistencies against her but that is the very nature of the Tribunal's task which is to sort out whether or not the applicant has satisfied it of her claims for protection. The sixth ground indicates that the Tribunal did not consider her further claims which are there articulated. However, these matters were referred to in the post-hearing correspondence between the applicant and the Tribunal and are referred to by the Tribunal in its reason for decision. I am unable to see any jurisdictional error of the type suggested by the applicant.
10. This matter has had a previous hearing in this Court when it was adjourned so that the Court could await the decision of the Full Court in SZLPP v Minister for Immigration NSD 1486 of 2008. This case was heard together with SZLPO v Minister for Immigration [2009] FCAFC 51. The factual matrix of the matter considered by the Full Court in that case, namely an email from the Tribunal to the New South Wales OP-RRT Liaison Unit communicating a request for particulars of the son's student visa application, was considered by the Full Court not to constitute a request for information which would have been required to comply with the provisions of s.424B of the Migration Act 1958 (Cth). This was said to be for a number of reasons. Firstly, because the request was for documents, which the Court had held was not information. Secondly, the request was not made to a person who had previously given information to the Tribunal. Thirdly, the Tribunal did specify the manner in which the information was to be provided. The Full Bench held that if, contrary to its views, a document constituted information, then by asking for a copy of it the Tribunal had complied with that aspect of s.424B that requires a method by which the information is to be provided be specified. Whilst I understand that the decision of the Full Bench in SZLPO and the cases decided with it is on appeal to the High Court, I am currently bound by that decision and propose to find accordingly.
11. The application is dismissed. The applicant must pay the respondent's costs which I assess in the sum of $5,500.00.

I certify that the preceding 11Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !eleveneleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 22 July 2009