SZMRT v Minister for Immigration & Anor [2009] FMCA 90 (4 February 2009)

Last Updated: 18 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMRT v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 90

MIGRATION – RRT decision – Chinese applicant claiming persecution for political activism – disbelieved by Tribunal – bias and irrationality not established – no jurisdictional error in relation to corroborative documents – application dismissed.

Migration Act 1958 (Cth), ss.424A, 424AA

Minister for Immigration v Jia (2001) 205 CLR 507 NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 NATL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 112 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225

Applicant:

SZMRT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2216 of 2008

Judgment of:

Smith FM

Hearing date:

4 February 2009

Delivered at:

Sydney

Delivered on:

4 February 2009

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr G Johnson

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) The application is dismissed.
(2) The applicant must pay the first respondent’s costs in the sum of $4,500.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2216 of 2008

SZMRT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The applicant arrived in Australia in December 2007. On 24 December 2007, he filed an application for a protection visa, assisted by a migration agent, Priscilla Yu. A statement attached to the application recounted the history upon which he claimed to fear persecution if he returned to the People's Republic of China.
2. The applicant claimed to have moved from his home city to a different province, where he opened a tyre shop, assisted by a friend who ran an adjoining petrol station. Both businesses “became the target of local corruptive officials, such as officials from the Industrial & Commercial Administrative Bureau, the Measurement Bureau, the Fire Bureau, the Public Security Bureau (PSB), so on.” These people demanded money and free petrol and tyres. This made their business “more and more difficult”, in circumstances where petrol prices were “up tremendously”. Eventually, both businesses had to close, particularly after the police reported their business for serious safety problems. The applicant and his friend visited solicitors and approached the local courts and relevant agencies to take legal action against “those police”, but they did not receive any help. Instead, he and his friend were suddenly arrested by the PSB, and were tortured and mistreated during detention. He was released after one month. His friend attempted to commit suicide, and “was mad”.
3. After his own release he returned to his home province. He said that he then became a political activist:
   • I thought that I should protest against the corrupt Communist system not only for (the friend) and his families but also for people like myself who have been subjected to unfair treatment for long time. We have to strive for our basic human rights; and we have to need a clean and democratic government which is able to protect our basic human rights.
4. He said that he contacted people to secretly distribute pamphlets, and organised people to send petitions to the central committee in Beijing “urging the PRC authorities to respect and protect our basic human rights to set up a clean and democratic government”. He said that meanwhile he arranged a trip overseas, and “the situation became more and more dangerous for me, because the police started investigating those suspects from October 2007”. He said that he was subject to interrogation in November and December 2007 three times. He said that ultimately he got a chance to leave China by bribing the police.
5. He claimed that after he left China, various relations of his “have been subjected to investigation by the police since my leaving; and I have been regarded as a significant leader who has actively organised anti-government movements during the period around National Day and Communist National Congress. If I return to China I would be arrested by the government immediately”.
6. No corroboration for this history was given to the Department of Immigration. A delegate interviewed the applicant on 6 March 2008, and on the same day made a decision to refuse the visa application. The delegate explained credibility concerns about the applicant’s claims arising from her interview, and noted that the applicant was able to depart China without incident on his own passport.
7. The applicant was assisted to appeal by his migration agent, and attended a hearing on 18 June 2008. At the hearing, he presented a number of documents in Chinese with translations. These purported to be a medical report stating that the applicant had had two fingers amputated “as a result of being burned”. There were also purported detention notices, and summonses addressed to the applicant to attend for interrogation during November and December 2007. A “criminal case verdict” related to three named persons, who were sentenced to periods of imprisonment for distributing “large amounts of the illegal propaganda materials of anti-Chinese communist party leaderships”. This document identified the applicant as “the principal offender”, “who has now escaped since the arrest warrant has been issued to arrest him”.
8. The applicant was advised at a first court date before me to consider presenting to the Court further evidence concerning his interviews both by the delegate and the Tribunal, if he maintained grounds of review challenging the adequacy of interpretation at, and the fairness of, those interviews. However, he has not presented any evidence to the Court concerning these, beyond what appears in the Court Book. I have no reason, therefore, to doubt the description of the hearing which is contained in the Tribunal’s statement of reasons.
9. At the hearing, the Tribunal questioned the applicant about his claimed history. Essentially he maintained the narrative in the original statement. However, the Tribunal identified what it thought were inconsistencies on some matters, comparing the evidence given by the applicant to the delegate with what the applicant said to the Tribunal.
10. The Tribunal also questioned the applicant as to perceived implausibility in his history. In particular, as to how the police would come to suspect him of distributing material, if it only made general demands for human rights and democracy, and made no reference at all to what had happened to him in a different province. The Tribunal also put to him the implausibility that, if he was interrogated intensively on four separate occasions as he claimed, he would not have been able to depart China as easily as he claimed. It also asked him why the police would arrest his friends three months after the cessation of the distribution of pamphlets, in circumstances where he could not explain why he himself had been suspected.
11. Following the hearing, the Tribunal sent to the applicant's agent an invitation to comment on three inconsistencies which it had also raised at the hearing, two of which concerned perceived concerns arising from the interview with the delegate. The applicant responded with a statutory declaration. This did not challenge the accuracy of what he was said to have said to the delegate, but sought to reconcile it with his statements to the Tribunal.
12. The Tribunal handed down a decision on 29 July 2008, which affirmed the delegate's decision. In its findings and reasons, the Tribunal accurately recounted the claims made by the applicant and his evidence. In my opinion, it correctly identified the applicant's central claim to fear persecution for a Convention reason, as arising from his claim that he was suspected of distributing anti-government petitions following his return to his home province in September 2007.
13. The Tribunal carefully explained the inherent difficulties in his claimed history which it had put to the applicant at the hearing. It also referred to the inconsistencies which it perceived in his evidence to it and the delegate, concerning how the pamphlets were printed, and his intentions when obtaining a passport in 2004. The Tribunal addressed the applicant's explanations and his responses to its questioning about all these concerns, but did not find them satisfactory, and was not persuaded by them. The Tribunal noted general information that exit controls are stringent in China, and it considered that if the applicant was suspected of being involved in anti-government activities he would not have been able to leave the country on his own passport. The Tribunal said that his account of his ability to leave China was “legally implausible”. The Tribunal said:
    • For all the above reasons, the applicant did not impress the Tribunal as a credible witness. The totality of the applicant's oral evidence shows a propensity to tailor his evidence in a manner which achieves his own purpose.
14. The Tribunal therefore did not accept any of the history, which the applicant had claimed had given rise to his being persecuted and fearing further persecution in China by reason of his political opinions. The Tribunal also did not accept that his business had closed for the reasons claimed. It did not accept that he had been accused of being behind anti-government activities in either provinces, and did not accept that he had been involved in distributing anti-government petitions in his home province. It did not accept that he was a suspect or had been interrogated. It did not accept that he was regarded as a “significant leader who has actively organised anti-government movements”.
15. After expressing these conclusions, the Tribunal said:
    • The Tribunal has considered the documents submitted by the applicant. However, given the fundamental lack of credibility within the applicant’s evidence, the Tribunal does not give any weight to any of the documents the applicant has provided in support of his claims (see Re: Minister for Immigration and multicultural Affairs Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165). The Tribunal does not accept that he was or is of any interest to the authorities in China. The Tribunal does not accept that the applicant holds an antigovernment political opinion which he would seek to express or may suppress due to his fear of the authorities upon his return. The Tribunal does not accept that the applicant has been harmed in the past or that, if he were to return to China now or in the reasonably foreseeable future, there is a real chance that he will be harmed for the reason of his actual or imputed political opinion or any other Convention reason. The Tribunal is not satisfied that the applicant’s fear of persecution is well-founded.
16. The applicant now asks the Court to set aside the Tribunal's decision, and to remit the matter for reconsideration. I can only make these orders if I am satisfied that the Tribunal’s decision is affected by jurisdictional error. I do not have power myself to decide whether the applicant should be believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
17. The applicant relies on grounds which are set out in an argumentative form in the original application. He has not filed an amended application or written submissions, but read to the court a written submission in Chinese, which repeated some of the arguments in the original application.
18. The first ground is:
    • The Tribunal, incorrectly, made its finding in relation to my credibility; and the Tribunal failed to provide me a fair opportunity.
19. An argument is then presented as ‘particulars’, that the Tribunal's reliance in part on two perceived inconsistencies in the applicant's evidence to the delegate and to the Tribunal followed from an unfair procedure. In particular, because “neither the Department nor the Tribunal have provided me a copy of such an important audio recording so that I could have a chance to verify the accuracy of the audio recording about the Department interview”. It is suggested, without any particular instances being identified, that it was possible that there had been incorrect, improper or inaccurate interpretation at the delegate’s interview or that there were misunderstandings. It is argued:
    • It is definitely unfair. Either the Department or the Tribunal should at least create a fair chance for me to verify accuracy of the audio recording about the Departmental interview.
20. The applicant has not suggested any particular statutory procedure required to be followed by the Tribunal which has not been followed. However, the Minister’s submissions explored the Tribunal's obligations under s.424A(1) of the Migration Act, which in this case applied as amended since June 2007. He submitted that any information taken by the Tribunal from the records of the delegate's interview was put to the applicant for comment, both in the course of the hearing and in the subsequent invitation for comment.
21. On the evidence before me I consider that this submission should be accepted. In the absence of a transcript of the hearing, I am not persuaded that the Tribunal did not adequately canvass the matter pursuant to procedures under s.424AA, nor am I persuaded that the matters put to the applicant for written comment did not comply with the requirements of s.424A(1). Moreover, under the interpretation of s.424A(1) taken in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26, the Tribunal is not obliged to put to the applicant as ‘information’, its possible thought processes about inconsistencies arising from what was said at the delegate's interview.
22. In relation to the fairness of the Tribunal’s procedures when putting matters to the applicant without giving him the audio recording, as the Minister's submission points out, s.424A must be read in combination with s.422B of the Migration Act which otherwise excludes the requirements of “the natural justice hearing rule”. Section 424A(1) does not require service of evidence, but only “clear particulars of any information” which would provide a reason for affirming the delegate’s decision (see NATL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 112 at [14]).
23. Furthermore, in the present case, I am not persuaded that any unfairness resulted from the Tribunal’s reliance on listening to the audio recording of the delegate's interview, even assuming that I should accept without verification the applicant's submission that he did not have access to that recording. The applicant had an opportunity to ask for the recording to enable him to respond to the Tribunal’s invitation for comments, if this was necessary, and neither he nor his agent made such a request. Rather, as I have indicated, they both accepted what was put to them as accurately reflecting what the applicant had said to the delegate. There is no evidence before me that it was not. In these circumstances, I accept the Minister's submission that there is no statutory requirement on the Tribunal to have provided on its own initiative a copy of the audio recording of the interview to the applicant or his agent.
24. I am therefore not persuaded by either the factual or the legal premises of the first ground argued by the applicant.
25. The second ground is:
    • The Tribunal failed to consider my evidence fairly and properly; and the Tribunal's finding included a reasonable apprehension of bias.
26. As this formulation indicates, the claim of apprehension of bias is not based upon anything which happened in the procedures followed by the Tribunal, including how the hearing was conducted before the Tribunal announced its decision. The applicant’s argument is based upon an attack on the merits of the Tribunal's reasoning set out in its statement of reasons. He attempts to characterise it as “definitely illogical, unreasonable and even ridiculous”. It is also suggested that the Tribunal “completely ignored my following evidences”, referring to evidence which, in my opinion, the Tribunal plainly was aware of and considered.
27. Essentially, the court is invited itself to prefer the applicant's evidence given to the Tribunal, and to accept his explanations in relation to the matters of concern to the Tribunal, in preference to the conclusions arrived at by the Tribunal. If it does this, it is suggested that the Court should conclude that the Tribunal must have had a closed mind to a genuine consideration of his case. Obliquely, the principles of apprehended bias or actual bias are invoked (see respectively: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [27]- [32], and Minister for Immigration v Jia (2001) 205 CLR 507 at [35] and [72]).
28. However, these are not conclusions which I would draw. In my opinion, the reasoning of the Tribunal is rational, was open to it on the evidence, and shows a genuine and proper attempt to perform the statutory duty of review given to the Tribunal. It is the task of the Tribunal to arrive at definite findings as to the credibility of evidence given by an applicant to it. The fact that its decision rejects explanations, or does not accept evidence, does not prove that it had a closed mind before it arrived at its conclusions.
29. In the present case, I can find no evidence which might satisfy the tests of apprehended bias or actual bias. This is not a case such as NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264, where an apprehension of bias can be supported by concerns about irrational reasoning on the part of the Tribunal.
30. The third ground in the application is:
    • The Tribunal completely ignored the most important documentary evidences which I have submitted to it in support of my claim; and the Tribunal made its finding based on unwarranted assumptions.

The documents submitted by the applicant at the hearing are then referred to, and it is suggested that the Tribunal did not fairly consider that evidence.

31. I have set out above the Tribunal's brief reference in its findings and reasons to how it treated the documents. It had earlier listed and summarised their contents. There is no doubt in my mind that it did fully consider the contents of the documents before arriving at its decision.
32. The Tribunal’s invocation of Ex parte Applicant S20/2002 is probably a reference to the well known statement of McHugh and Gummow JJ at [49], which is extracted by the Full Court in WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [67]:
    • It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that the case comprises lies by that party.
33. As that proposition indicates, the rejection of purportedly corroborative evidence, after a conclusion about the veracity of evidence given by a party, still requires a proper consideration of that initial question of veracity. A line of cases in the Full Court have held that it is not permissible for a Tribunal totally to put out of mind purported corroboration before arriving at a conclusion on an applicant’s veracity. In cases such as the present, the issue for the Court upon judicial review is whether it is persuaded that the Tribunal’s reasons show that this has happened.
34. It is important to bear in mind that this is an issue in which the Tribunal’s reasons are considered as possible evidence of a mental process occurring before decision, and that a statement of reasons for decision does not necessarily follow the actual sequence of those mental processes (cf. Gleeson CJ in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [14]). A Tribunal will commonly start its statement of reasons with an explanation of its assessment of the applicant's evidence, at least in a case such as the present. There is no necessary inference from this that it did not assess the applicant’s evidence with an awareness of the other evidence, merely because it subsequently explained its conclusions about the weight to be given to that evidence.
35. Reading the present Tribunal's reasons, I am not persuaded that the shortness of its discussion of the documents submitted by the applicant evidences an impermissible putting out of mind the evidentiary weight of those documents when assessing the veracity of the applicant. The Tribunal's reasons for rejecting the veracity of the applicant’s central claim of political activism at the end of 2007 was, as I have indicated, clearly rational and even cogent. In that context, in my opinion, the Tribunal's statement of reasons does not show a jurisdictional failure to take into account the documentary evidence, but rather, should be read in the manner that the Full Court understood the reasoning of the Tribunal in WAKK at [70]. I am therefore not persuaded that a jurisdictional error raised by ground 3 is made out.
36. The applicant's submissions to me today did not raise any other ground of possible jurisdictional error, and I have not been able to identify any. In those circumstances, the Tribunal's decision was a privative clause decision and I must dismiss the application.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 16 February 2009