SZOUV v Minister for Immigration & Anor [2011] FMCA 73 (10 February 2011)

Federal Magistrates Court of Australia

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SZOUV v Minister for Immigration & Anor [2011] FMCA 73 (10 February 2011)

Last Updated: 11 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOUV v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 73

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error- whether the Refugee Review Tribunal’s had regard to all relevant evidence and material before it - whether the Refugee Review Tribunal considered all claims made by the Applicant - whether the Refugee Review Tribunal’s decision was affected by bias or apprehended bias.

Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 474; pt.8 div.2

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2005) 144 FCR 1 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264

Applicant:

SZOUV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2584 of 2010

Judgment of:

Emmett FM

Hearing date:

10 February 2011

Date of Last Submission:

10 February 2011

Delivered at:

Sydney

Delivered on:

10 February 2011

REPRESENTATION

The Applicant appeared in person and was assisted by a Mandarin interpreter

Counsel for the Respondent:

Mr M P Cleary

Solicitors for the Respondent:

Ms A Totoeva (Clayton Utz)

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2584 of 2010

SZOUV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated and handed down on 4 November 2010.
2. The applicant claims to be a citizen of the People’s Republic of China (China) and of Chinese ethnicity and a (“the Applicant”).
3. The issues in this case are: whether the Tribunal had regard to all relevant evidence and material before it; whether it considered all claims made by the Applicant; and, whether its decision was affected by bias or apprehended bias. These issues are considered below in the context of considering whether the Tribunal’s decision is affected by jurisdictional error.
4. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and a summary of the Tribunal’s review and decision.

Background

5. The Applicant arrived in Australia on 19 March 2010 having departed legally from China on a passport issued in his own name and a Tourist Subclass 676 visa issued on 12 March 2010.
6. On 19 April 2010, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
7. On 5 July 2010, the Delegate refused the Applicant’s application for a protection visa.
8. On 3 August 2010, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
9. On 4 November 2010, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
10. On 30 November 2010, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

11. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.
12. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
13. Article 1A(2) of the Convention relevantly defines a refugee as a person who:
    • “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
14. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

15. In his protection visa application, the Applicant claimed that he feared persecution by Chinese authorities who allege that the Applicant organised anti-communist and anti-government activities in China.
16. The Applicant is from the village of Aotou, Sanshan Town, Fuqing city, Fujian Province. The Applicant claimed to have operated his own aquatic farm business in his local area. As his business developed, the Applicant collaborated with others in his village in January 2005 to form a large aquatic farm (the Aotou Sea Farm).
17. In September 2007, the Communist Party Secretary of Aotou village set up his own large aquatic farm, relying upon contacts he had in the government. This farm blocked the flow of fresh water into the Applicant’s farm, causing the Applicant extensive problems and preventing the proper operation of the farm, unless the Applicant and his business partners pleaded with and/or bribed the Communist party Secretary.
18. The Applicant and his business partners sought to rectify this problem by constructing a canal. They were advised by the Sanshan Town Government that approval for the construction of the canal could only be given by the Communist Party Secretary, who subsequently refused to give his approval. As a result, the Applicant and his business partners continued to suffer, and it became increasingly difficult for their sea farm to continue to operate.
19. In April 2009, the dispute escalated when two of the Applicant’s business partners were beaten by the Communist Party Secretary’s security guards following an argument.
20. Following this incident, the Applicant arranged for a group of 40 people from the families of his business partners to approach the Sanshan Town authorities and lodge complaints about the beatings and interference with their water farm activities by the Communist Party Secretary. However, the Applicant claims that the authorities had already been bribed by the Communist Party Secretary, and therefore had no intention of verifying the truth. When members of the group tried to enter the government building, chaos erupted and the authorities arrested the Applicant alleging that had had incited anti-government activities.
21. The Applicant claimed to have been detained for approximately two months, during which he was repeatedly beaten and humiliated. Before his release, he was forced to signs a statement to the effect that he had organised anti-government activities. The Aotou Sea Farm was confiscated and taken over by the Communist Party Secretary.
22. The Applicant subsequently organised the distribution of pamphlets which condemned corrupt Communist officials and police. These pamphlets were discovered by the authorities. The Applicant then fled to Shanghai and made arrangements to leave China. After his departure, the authorities went to his home, investigated his wife and placed him on a blacklist. The Applicant claims that he will be persecuted by the authorities if he returns to China.

The Delegate’s decision

23. On 30 June 2010, the Applicant attended an interview with the Delegate.
24. On 5 July 2010, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
25. The Delegate found that the Applicant was not a witness of truth and was not satisfied that any of his written claims were a true reflection of his circumstances. Further, the Delegate was not satisfied that the Applicant was of adverse interest to the Chinese authorities for writing and distributing anti-government and anti-Communist literature.

The Tribunal’s review and decision

26. On 3 August 2010, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
27. The Applicant provided no further documents in support of his review application.
28. On 20 August 2010, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 15 September 2010 to give oral evidence and present arguments. Later, this hearing was rescheduled to 11 October 2010.
29. On 13 October 2010, the Tribunal wrote to the Applicant identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment upon it (“the s.424A Letter”).
30. On 27 October 2010, the Applicant responded to the s.424A Letter.
31. On 11 October 2010, the Applicant attended that hearing and gave oral evidence with the assistance of an interpreter and migration agent.
32. The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
33. The decision of the Tribunal is accurately summarised by counsel for the First Respondent, Mr P Cleary, in his written submissions as follows:
    • Tribunal’s Decision dated 4 November 2010
    • 11. In its decision the Tribunal affirmed the delegate’s decision not to grant a protection visa to the applicant.
    • 12. In coming to its decision to affirm the decision of the delegate the Tribunal reviewed at length the claims and evidence provided by the applicant. Firstly, it reviewed the applicable law in unobjectionable terms. It then set out the applicant’s claims and evidence. Finally, the Tribunal set out its findings and reasons.
    • 13. The Tribunal rejected the applicant’s claims on the basis of an adverse credibility finding. The Tribunal did not accept that the applicant was a truthful witness or that he had given a truthful account of his reasons for leaving China for the following reasons:
      • a. Although able to provide evidence closely aligned with his written statement, when required to deviate from the statement, he was frequently unable to do so;
      • b. It was not credible that Mr Lin, with whom the applicant had an association known to officials, would have been arrested yet the applicant overlooked until some 3 weeks later and after he had departed China;
      • c. During the Tribunal hearing, the applicant claimed that Mr Wei’s cousin had tendered for the Ao Tou Sea Farm (“Sea Farm”) but lost the tender to the applicant because his bid was higher. The applicant claimed that Mr Wei was motivated to block water access to the Sea Farm by revenge because of the lost tender. The Tribunal considered that it was not credible that Mr Wei, whom the applicant claimed to have been the other signatory to the applicant’s contract for the Sea Farm, would jeopardise the Sea Farm because his cousin had unsuccessfully bid for the Sea Farm;
      • d. Aspects of the applicant’s evidence relating to the contract for the Sea Farm, including his lack of knowledge of details of the contract, raised serious doubts about his claims; and
      • e. The applicant could not provide a reasonable explanation as to why Mr Wei was not legally entitled to charge a fee for granting water access to the applicant’s farm as claimed.
    • 14. Whilst prepared to accept that the applicant may at some point have contracted for the operation of the Sea Farm, the 15. Tribunal rejected the balance of the applicant’s claims and did not accept that the applicant had any adverse profile in China. Accordingly, it was not satisfied that the applicant had a well-founded fear of persecution for reasons of his political opinion (actual or imputed) or any other Convention reason if he were to return to China now or in the reasonably foreseeable future.
    • 15. The Tribunal found the applicant was not a person to whom Australia owed protection under the Act.

The proceeding before this Court

34. The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
35. On 16 December 2010, the Applicant attended a directions hearing before me. The Applicant confirmed that he wished to continue with the application. The Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing.
36. At the directions hearing, the Applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The Applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. The Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
37. At the commencement of the hearing, the Applicant confirmed that he had not filed any amended application, evidence or submissions in support of his application and that he had no further documents to present to the Court this morning in support of his application.
38. The Applicant confirmed that he relied on the grounds contained in an application filed on 30 November 2010 as follows:
    1. While the Tribunal decided my review application, the Tribunal has ignored or failed to consider actual situation in China; and the Tribunal has ignored or failed to consider independent evidence, such as country reports or human right report, which is before the Tribunal.
    2. The Tribunal misunderstood my evidence significant owing to lack of basic understanding or knowledge about actual situation in China and the tribunal made a significant mistake in relation to making its finding about my important claims.
    3. The Tribunal’s decision has included a reasonable apprehension o bias and the Tribunal made its finding based on its unwarranted assumption.
39. Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

Ground 1

40. Ground 1 appears to allege that the Tribunal ignored or failed to consider certain independent evidence and ignored or failed to consider the “actual situation in China”. The ground was unsupported by particulars, evidence or submissions. The Applicant was unable to identify any independent evidence either that he had given the Tribunal or otherwise, which the Tribunal had ignored or failed to consider.
41. The Tribunal’s decision record makes clear that the reasons that the Applicant’s claims were not accepted by the Tribunal was because of the Tribunal’s adverse credibility findings in respect of the Applicant’s evidence.
42. The Tribunal comprehensively rejected the Applicant’s claims to have been a manager of a sea farm and the claims that flow therefrom. The Tribunal also rejected the Applicant’s claims of having participated in protests or that he was arrested and detained for any Convention related reason. The Tribunal also rejected the Applicant’s claims of having organised for the distribution of anti-government and anti-Communist literature. The Tribunal rejected the Applicant’s claims of escape and hiding in Shanghai before departing China for Australia and rejected his claims of being placed on a blacklist since his departure. The Tribunal did not accept that the Applicant has any adverse political profile in China and found that he wished to depart China for reasons entirely unrelated to the claims in his application.
43. The Tribunal’s decision record makes clear that the Tribunal explored the Applicant’s claims with him in some detail at the hearing and put to him matters of concern it had with matters about his evidence and noted his response.
44. Following the Tribunal hearing, the Tribunal wrote to the Applicant on 13 October 2010, pursuant so s.424A of the Act, inviting him to comment on particular concerns that the Tribunal had about his evidence. The Tribunal also invited the Applicant to comment on inconsistencies between his evidence to the Department and to the Tribunal on certain issues. The Applicant responded to the Tribunal’s s.424A letter by facsimile on 27 October 2010. The Tribunal accurately summarised the Applicant’s responses in its decision record. However, ultimately, the Tribunal was not persuaded by the Applicant’s various responses.
45. In particular, the Tribunal rejected the Applicant’s claims of ever having been part of the management of the sea farms as alleged, based on the Applicant’s lack of knowledge of the alleged contract to that effect. The Tribunal also explored with the Applicant, whether his dispute with Mr Wei was more in the nature of a dispute as to whether or not Mr Wei was entitled to charge a fee for his water supply.
46. Whilst the Tribunal was prepared to accept that the Applicant may at some point have contracted for the operation of a sea farm, as stated above, the Applicant’s further claims arising out of his alleged management of sea farms and dispute with Mr Wei and consequent protests, were rejected.
47. The Tribunal’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
48. In light of the Tribunal’s rejection of the Applicant’s fundamental claims, any independent country information was not relevant to those findings. Further, as stated above, the Applicant was unable to indentify any independent evidence that he allegedly gave to the Tribunal and which it ignored or failed to consider and none is apparent from the bundle of relevant documents marked Exhibit 1R.
49. There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 16 December 2010, the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was also directed to give notice if he wished to rely on recordings of the hearing. However, no step was taken by the Applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.
50. In the circumstances, I accept the submissions of Counsel for the first respondent, Mr Cleary, that the Applicant misunderstood the basis for the Tribunal’s decision and that while there were no findings made by the Tribunal regarding “the situation in China”, such findings were not necessary.
51. Accordingly, Ground 1 is rejected.

Ground 2

52. Ground 2 appears to allege that the Tribunal misunderstood the Applicant’s evidence because it did not have an understanding or knowledge about the actual situation in China and, further, that the Tribunal made a significant mistake in relation to its findings about the Applicant’s claims.
53. When I explored with the Applicant what he meant by Ground 2, the Applicant said that the Tribunal did not understand that a manager in China is different to a manager in Australia and is not required to have qualifications or be a university graduate and may be a person with only primary school education.
54. However, a fair reading of the Tribunal’s decision record does not suggest that The Tribunal understood that a manager in China must have qualifications or be a university graduate and that the Tribunal rejected the Applicant’s claims, because he was not such a person.
55. The Tribunal expressed concerns about the Applicant’s claim to have been the manager of the farms in circumstances where he did not know basic aspects of the contract relating to the operation of the farms and because of his evolving evidence in respect of concerns to that effect expressed to him by the Tribunal at the hearing. The Tribunal found that the Applicant manufactured his explanations in an attempt to overcome discrepancies between his oral evidence and the contract.
56. As stated above, it was open to the Tribunal to reject the Applicant’s claims of being a manager on the evidence and material before it, and for the reasons it gave.
57. To the extent that the Applicant complains that the Tribunal made a significant mistake in relation to his claims, there is no claim that clearly emerges from the material before the Tribunal that was otherwise not considered and determined by the Tribunal (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2005) 144 FCR 1 at [60] and [68].The Applicant was otherwise unable to particulate any claim made by him that was not considered by the Tribunal’s findings and conclusions.
58. In the circumstances, Ground 2 does not identify any jurisdictional error on the part of the Tribunal and appears more to be a disagreement with the findings and conclusions of the Tribunal. Such complaints invite merits review which this court cannot undertake (Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
59. Accordingly, Ground 2 is not made out.

Ground 3

60. Ground 3 alleges bias on the part of the Tribunal, based on “its unwarranted assumption”. Ground 3 is unsupported by particulars, evidence or submissions and the Applicant declined to say anything further in support of the ground on the basis that he did not understand the contents of Ground 3 which he said had been written by a friend.
61. In any event, such a claim is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the Applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
62. The Applicant was directed on 16 December 2010 by this Court to file and serve any affidavit containing additional evidence to be relied upon including the transcript of the hearing, by 13 January 2011. The Order informed the Applicant that evidence of a Tribunal hearing was to be presented as a transcript verified by affidavit and that if he wished to rely on a tape recording of the Tribunal hearing, he needed to give notice by 13 January 2011. However, no document was filed by the Applicant either in accordance with those directions or otherwise.
63. A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).
64. A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [27]- [32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 at [115]).
65. Accordingly, Ground 3 is rejected.

Conclusion

66. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
67. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
68. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
69. The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 10 February 2011