SZNNR & Anor v Minister for Immigration & Anor [2009] FMCA 797 (11 August 2009)

Last Updated: 25 August 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNNR & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 797

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegation of bias not proved.

Migration Act 1958, ss.91R, 424, 424A, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507

First Applicant:

SZNNR

Second Applicant:

SZNNS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1006 of 2009

Judgment of:

Cameron FM

Hearing date:

11 August 2009

Date of Last Submission:

11 August 2009

Delivered at:

Sydney

Delivered on:

11 August 2009

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) The application be dismissed.
(2) The applicants pay the first respondent’s costs fixed in the amount of $4500.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1006 of 2009

SZNNR

First Applicant

SZNNS

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants are citizens of China. The first applicant claims that, while in China, her husband organised a farmers’ protest after the local authorities expropriated some farmland in their home town. She claims that her husband was arrested for anti-government activities and later died while serving out his sentence. She claims that, since arriving in Australia, she has written letters to various government agencies in China urging them to investigate her husband’s death and to investigate the corrupt officials in her home town. She claims that she has since been placed on the government’s black list.
2. The first applicant claims to fear persecution in China because of her husband’s activities and because of the letters she wrote while in Australia. Her son, who is the second applicant in these proceedings, has made no claims of his own but relies on his status as a member of the family unit. The first applicant’s daughter was included in the original application but is not a party to these proceedings.
3. After arriving in Australia on 12 December 2006, the applicants lodged an application for a protection visa. This was refused by the Minister’s delegate on 24 November 2008. The applicants then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicants were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.
4. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
5. For the reasons which follow, the application will be dismissed.

Background facts

6. The facts alleged in support of the first applicant’s claim for a protection visa are set out on pages 4 – 21 of the Tribunal’s decision (Court Book (“CB”) pages 180 – 197). I now set out the relevant factual allegations advanced in support of that application.

Protection visa application

7. The first applicant made the following claims in a statement attached to her protection visa application:
   1. she and her husband were farmers in China;
   2. in 2005 the local authorities, the Baitu Township government, expropriated two large pieces of farmland in their home town. The land was sold to some businessmen who had bribed the Baitu Township government into allowing them to operate their brick factories in the area. The local officials made large profits from the sale but the first applicant’s husband only received a small amount of compensation;
   100. many of the local farmers, including the first applicant’s husband, appealed to various government agencies, urging them to investigate the corruption of the Baitu Township government, to return the expropriated land to the farmers, to give the farmers reasonable compensation and to stop the brick factories from operating. However, despite their appeals, they could not get any help;
   4. on 8 May 2006 about 200 farmers staged a sit-in protest in front of the Baitu Township government. The protest was organised by the first applicant’s husband and his friend, a person I will refer to as Mr D. There were more than 500 people gathered in total;
   5. the Chinese authorities regarded the protest as an anti-government movement and sent in armed police to suppress the crowd. About twelve farmers, including the first applicant’s husband and Mr D, were arrested. They were subsequently detained for eighteen days during which time they were interrogated and tortured. The first applicant’s husband was forced to write a confession promising not to have any further involvement in anti-government activities. He also had to pay a penalty;
   6. even so, the first applicant’s husband did not intend to give up his struggle. He continued to make plans but at the same time obtained passports for the first applicant and their children. He tried to get a passport for himself but was unsuccessful because of his “black record”;
   7. the first applicant and her two children departed China on
      11 December 2006. This was the last time the first applicant saw her husband;
   8. on 30 December 2006 the first applicant’s husband and Mr D went to Beijing. They stayed there for one week and tried to learn how best to approach the central government. Eventually, they decided to organise another protest;
   9. they were reported to the PSB by a traitor and were arrested on
      10 January 2007. They were sent to work on a construction site as part of their “re-education through labour” sentence;
   10. on 28 January 2007 a bridge collapsed on top of the first applicant’s husband killing him;
   11. the first applicant has since written to a number of authorities in Guangdong asking them to investigate the death of her husband and the brick factories in her home town. She has also written to various TV stations asking them to reveal the corruption of the Baitu Township government;
   50. she has been informed by a close friend that her letters are regarded as anti-government material and, as a consequence, she has been placed on a PSB black list; and
   13. she and her children cannot return to China as her husband is regarded as a significant leader of the anti-government movement in her home town and it would be impossible for them to enjoy a normal life. Also, her home is regarded as an “illegal gathering” as it is the place where her husband organised his anti-government activities.

Tribunal hearing

8. The first applicant made the following claims at a hearing before the Tribunal:
   1. she has three brothers in Australia, all of whom are Australian citizens;
   2. she learned of her husband’s death from his cousin who rang her from China. She was home alone at the time and told her children of the news when they came home for dinner. However, her daughter claimed that she and her mother were both at home when the call came through and that it was Mr D who advised them;
   100. the first applicant variously stated that she did not apply for protection earlier than she did because her niece told her that it was hard to get refugee status; because she did not know how to apply and her three brothers were busy working; because she did not know who to ask and how to ask and her niece did not know how to apply;
   4. the authorities knew that anti-government people were meeting at her farm and they suspected her of helping her husband with the protest. However, they did not question her;
   5. she variously stated that on 8 May 2006 the protesters her husband organised were permitted to protest for four hours before being dispersed because:
      1. they were just sitting quietly. She later said that they were giving out pamphlets and waving flags and calling out slogans;
      2. the PSB had not been called;
      3. they were peasants and the PSB needed to see what they were about before taking any action;
      4. the protest was in Baitu county and the PSB could not send so many police officers at that time; and
      5. the authorities had to confirm the issues and go through a lot of departments before they sent anyone;
   6. Mr D was released a few days after her husband’s death. She then said that he was released around March, and later said that she could not remember because she was confused and everything was chaotic at the time;
   7. she sent the letter to various government authorities but did not need to find out their respective addresses because the postal authorities would know where to send them. She simply wrote down the name of the government authority and its area and the letter would reach them; and
   8. she did not show the letter to her children. She then said that she showed them the letter but whether they read it she did not know. She said that she showed them the letter when she was writing it but did not pay attention to whether or not they read it. She put it on the floor but did not know if they picked it up. However, her son gave evidence that he read the letter as his mother was writing it, after which she took it to the post office. Her daughter stated that she read the letter after her mother had finished writing it.

The Tribunal’s decision and reasons

9. After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the applicants were persons to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
   1. the Tribunal considered that the delay between the first applicant’s arrival in Australia (in 2006) and the lodgment of her protection visa application (in 2008) to be significant and highly adverse to her claim to fear persecution in China. The Tribunal did not consider the first applicant’s various explanations for the delay to be credible, noting that:
      1. she has three brothers in Australia, two of whom have resided here for ten and twenty years respectively, and a university educated niece with whom she resides. Had they made basic enquiries, they would have been able to ascertain the process involved in applying for a protection visa;
      2. the Tribunal did not accept that the first applicant’s relatives did not make enquiries on her behalf because they believed she would be unsuccessful. Rather, had they been aware of her circumstances in China and genuinely believed her claims, they would have encouraged her to lodge an application for protection;
   2. the Tribunal found that the first applicant had manufactured a set of claims in an attempt to obtain refugee status in Australia, noting that, when required by the Tribunal to deviate from her statement and to provide explanations for her actions, she was at times evasive, provided evidence that was not credible and provided evidence that was inconsistent with that of her children and the independent evidence. The Tribunal observed that:
      1. her claim that the protesters were “just sitting quietly” was not consistent with her later claim that they were handing out pamphlets and shouting slogans;
      2. it was not credible that the authorities in China were so incompetent that they would fail to notice the presence of between two hundred and five hundred protesters or to be unable to determine in a short space of time what the protest was about;
      3. her claim that the protesters were permitted to sit outside government offices for some four hours before they was dispersed was inconsistent with independent evidence which indicates that protests in China are severely restricted and dispersed quickly;
      4. her claim that she was suspected of involvement in the protests yet not subject to any adverse attention from the authorities lacked credibility, given the strong action allegedly taken against her husband and the independent evidence that persons involved in protests or dissent in China are given lengthy periods of imprisonment;
      5. she provided a statement indicating that Mr D was released on 23 February 2007 yet, when questioned, gave various responses concerning how long he was detained and when he was released. In addition, according to her evidence,
         Mr D was allegedly released after a short period, i.e. some five weeks, which was not consistent with the independent evidence regarding the treatment such persons receive from the Chinese authorities;
      6. the Tribunal noted the inconsistent evidence provided by the first applicant and her daughter concerning how and from whom they learnt the news of the death the first applicant’s husband and where they were at the time;
   100. as to the letters allegedly sent to Chinese government authorities and television stations:
        1. the Tribunal did not think that it was credible that the applicant would go to considerable efforts to write a letter to the authorities in China and yet make no attempt to ascertain the full addresses of the intended recipients or to ensure that the letters reached the intended recipients. The Tribunal did not accept that the first applicant made no such attempts because, as she claimed, she did not expect a response or she considered it sufficient to send a such a letter from Australia to China with merely the name of the organisation and its area written on the cover;
        2. given the first applicant’s assertion that the letter was one of the main reasons why she and her children could not return to China, it was highly improbable that she would not have at some point since writing the letter, some two years ago, have discussed with her children whether they had read it or were aware of its contents;
        3. her evidence concerning the preparation of the letter was inconsistent with that of her son; and
        4. the Tribunal was strongly of the view that the first applicant’s only purpose in writing the letter was to manufacture a claim for refugee status in Australia. Therefore, pursuant to s.91R(3) of the Act, it disregarded the letter and the alleged consequences arising from it;
   4. in light of these findings, the Tribunal did not accept that the first applicant or her children were witnesses of truth. Accordingly, it did not accept that the first applicant’s husband or Mr D organised a farmers’ protest or suffered any harm as a result. It also did not accept that the first applicant herself was involved or was suspected of any involvement in the protest. Therefore, the Tribunal did not accept that the first applicant fled China as a result of these matters;
   5. in addition, the Tribunal did not accept the first applicant’s claims regarding her husband’s actions after she and her children departed China or that she was told that the police were investigating her. It did not accept that her husband died whilst undergoing re-education through labour, that he was regarded as a significant leader in the anti-government movement or that he had any political profile in China such that the first applicant has been imputed with a political profile arising from her husband’s actions; and
   6. the Tribunal accepted that the first applicant’s land was confiscated and that adequate compensation was not paid. It accepted that the brick factories created environmental pollution and that it became difficult for her and her husband to make a living. However, the Tribunal did not accept that this occurred for any Convention-related reason. Rather, it occurred as a result of the actions of corrupt officials motivated by financial gain, not a desire to harm the first applicant or her family for any Convention reason.

Proceedings in this Court

10. The grounds of the application commencing these proceedings were pleaded as follows:
    1. The Tribunal’s decision has included a reasonable apprehension of bias.
    • 2. In summary, I have never ever believed that my application has been considered by the Tribunal properly and fairly.

First ground

11. The first allegation is supported by lengthy particulars which address two distinct issues. The first part of the particulars quotes passages from the Tribunal’s decision record where the Tribunal expresses its findings on issues such as the late lodgment of the applicant’s protection visa application, the actions of the PSB at the protest which the first applicant’s husband allegedly organised on 8 May 2006, the fact that the PSB did not interview the first applicant after that protest and the uncertainty of the first applicant’s evidence concerning when Mr D was released from detention. The particulars then counterpose factual assertions and arguments as to why the Tribunal’s factual conclusions were incorrect. In reality, what the applicants set out in the first part of the particulars is a series of disagreements with the Tribunal’s factual conclusions.
12. The Court is not empowered to re-open the Tribunal’s fact finding but that is not, in reality, what the applicants seek. They invite the Court to conclude that the Tribunal’s findings are evidence supporting a finding of apprehended bias on its part.
13. The test to be applied in determining whether a finding of apprehended bias is to be made is whether a fair-minded lay observer who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias, might reasonably apprehend that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the question it is required to decide: Johnson v Johnson (2000) 201 CLR 488 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425.
14. The applicants have put no evidence before the Court which reflects on the manner in which the Tribunal conducted the review. The only evidence touching on this issue is that found in the Tribunal’s decision record. There is no basis on the evidence before the Court to conclude that the conduct of the Tribunal’s review might give rise to an apprehension of bias of the sort considered in the authorities.
15. What the applicants are really alleging, however, is that the Tribunal was actually biased and that this manifested itself in the findings which it made. The test for actual bias is whether the Tribunal’s state of mind exhibited a prejudgment whereby it was so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments might have been presented to it: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507. An allegation of actual bias must be distinctly made and clearly proved. Neither of those requirements has been satisfied here. Although unrepresented parties litigating in a foreign language in a foreign legal system may be forgiven deficiencies in the way an allegation is presented, they are not relieved of the obligation of proving the allegations which they essentially make.
16. Here, all the applicants have raised in support of the first aspect of their allegation of bias is a disagreement with the Tribunal’s factual findings, findings which were open to it to make. Such a disagreement, without more, is no basis on which to allege bias and certainly no basis on which to find it. The Tribunal’s decision record discloses a careful and diligent approach to its review. There is no basis for the Court to conclude that the Tribunal’s decision was tainted with bias, either actual or apprehended.
17. The second part of the particulars twice state, in essence, that the Tribunal failed to consider independently, fairly and properly certain evidence which the applicants put before it. In this connection, the applicants make reference to passages from the first applicant’s statutory declaration submitted in response to the Tribunal’s s.424A notice of 26 February 2009.
18. The Tribunal’s decision record discloses that it summarised that statutory declaration in para.60 of its decision. It relevantly referred to that statutory declaration in paras.75, 77 and 79 of its decision record under the heading “Findings and Reasons”. There, the Tribunal exposed its reasoning and I do not conclude that it failed to consider the evidence before it with an open mind. Again, the Tribunal’s decision record does not disclose a basis upon which the Court can conclude that its decision was tainted with bias, whether actual or apprehended.

Second ground

19. The second allegation made in the application raises no matter distinct from those matters raised by the first allegation and therefore discloses no basis upon which the Tribunal’s decision might be considered to be effected by jurisdictional error.

Other matter

20. Finally, in his written submissions, the Minister raised the potential for s.424 to have relevance in these proceedings. However, as this was not a matter raised by the applicants, it is not something which need be considered on this occasion.

Conclusion

21. For these reasons, jurisdictional error on the part of the Tribunal has not been demonstrated.
22. Consequently, the application will be dismissed

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date: 24 August 2009