SZORI v Minister for Immigration & Anor [2011] FMCA 93 (22 February 2011)

Federal Magistrates Court of Australia

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SZORI v Minister for Immigration & Anor [2011] FMCA 93 (22 February 2011)

Last Updated: 8 March 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZORI v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 93

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegation that the Tribunal’s decision was affected by jurisdictional error by reason that the Tribunal failed to give the applicant an opportunity to present her case, was biased, did not refer to information, found that the applicant lacked credibility and did not have evidence which disproved her case.

Migration Act 1958, ss.424AA, 474

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

Applicant:

SZORI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2175 of 2010

Judgment of:

Cameron FM

Hearing date:

22 February 2011

Date of Last Submission:

22 February 2011

Delivered at:

Sydney

Delivered on:

22 February 2011

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:

Clayton Utz

ORDERS

(1) The application be dismissed.
(2) The applicant pay the first respondent’s costs fixed in the amount of $3,300.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2175 of 2010

SZORI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of China. She claims to fear persecution in China because of statements she made regarding the Chinese government which were communicated to the authorities by her husband. She alleges that she is now wanted for investigation by the Chinese authorities and fears being arrested if she returns to China.
2. The applicant arrived in Australia on 20 April 2008 on a student guardian visa. On 24 February 2010 she lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 8 May 2010. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
3. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its 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.
4. For the reasons which follow, the application will be dismissed.

Background facts

5. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-9 of the Tribunal’s decision.
6. In her written statement attached to her application for a protection visa, the applicant claimed:
   1. in October 2008 her husband started his own business as a clam farmer. From April to June 2009, the army carried out military exercises in the waters enclosing her husband’s farm and he, along with other villagers, had to temporarily relocate from the village;
   2. when he returned to his farm in July 2009, her husband found that the farm did not have any clams, that the area had been severely polluted by engine oil, that it could not be declared clean for about two to three years and that the military refused to pay compensation for the pollution;
   100. in November 2009, her husband, as well as other affected farmers, staged a protest at the local military base and as a result her husband, along with other people, was arrested. Her husband was not released from detention because he refused to sign a “guarantee letter” and wanted to seek compensation from the government;
   4. during his interrogation, her husband, in anger, criticised the army, accused the government of being despotic and said that it was not surprising that the applicant had told him that “Australia was really a democracy country that it respects people’s freedom and human right,” that there was plenty of news about Communists suffering persecution in China and that it was not surprising that many Communists had quit the Chinese Communist Party;
   5. her husband was asked if she or her son published anti-Communist declarations in Australia and was told to tell her that she and her son should return to China for investigation. He was told that they would not be harmed but he did not believe this; and
   6. she fears being arrested on anti-government charges if she returns to China.
7. At the Tribunal hearing the applicant made the following additional claims:
   1. her husband was in a detention centre and had been since November 2009;
   2. her husband and her brother have told her that she will be arrested if she goes back to China because her husband told the authorities that she had said that the Australian government is very good, that the Chinese government is very bad and that in China, one cannot do anything without money. Her husband had spoken carelessly and only said these things to the authorities once;
   100. her husband told the authorities what she said before he was detained and the authorities told him, after he had been detained, that she and her son should return to China for questioning; and
   4. her brother visited her husband once a month and communicated his messages to her.

The Tribunal’s decision and reasons

8. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person 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 was not satisfied that there was a real chance that the applicant would face harm in China for reasons of her express or imputed political opinion. In this regard, the Tribunal made the following findings:
      1. based on the applicant’s evidence, the authorities had only once expressed their desire to talk to her and the applicant’s husband appeared not to have been pressed to compel or even ask the applicant to return to China since that one occasion. The Tribunal expressed the view that the Chinese authorities’ apparent apathy seemed to be reflected in the absence from the sources which the Tribunal consulted of any evidence to suggest that criticism of the government at the low level purportedly communicated by the applicant to her husband carried serious consequences, including ongoing investigation, arrest and detention; and
      2. given the layers of communication from the applicant’s husband to her brother and then to her, it was unclear whether the authorities’ demands were communicated to the applicant in the exact terms reported by her. The Tribunal found it odd that the authorities in China would effectively warn her before they had a chance to investigate her. The Tribunal was of the view that what was communicated to her husband may have been designed merely to intimidate him;
   2. the Tribunal also found that the delay between the applicant being told by her brother what the authorities had communicated to her husband and the lodgment of her protection visa application cast doubt on the genuineness of her fear of persecution; and
   100. the Tribunal was not satisfied that there was a real chance that the applicant would be harmed by reason of her membership of the particular social group of her husband’s family. The Tribunal found that other than what the applicant had communicated to her husband, she did not claim to be at risk of harm for the reason of the pollution of her husband’s clam farm and her husband’s actions, arrest and detention. It was not satisfied that the applicant’s husband’s circumstances gave rise to a real chance that she would face serious harm in China.

Proceedings in this Court

9. The grounds of the application commencing these proceedings were pleaded as follows:
   • 1. I believe that the decision makers made jurisdiction mistakes when considering my application. They did not give me proper opportunity to explain my case and simply refused my application base on bias against me.
   • 2. The decision makers did not even refer to any information from any resources about that my husband was arrested by Chinese Authority.
   • 3. The decision makers believed that I would not be persecuted on my return to China and I was lack of credibility. They could not produce any evidence or materials to justify the making of their decisions and they just simply refused my application.
   • 4. I hope my application can be reconsidered by you.
10. In support of those contentions, the applicant alleged the following facts:
    • 1. I, a citizen of China, arrived in Australia on 20 April 2008.
    • 2. On 24 February 2010 the Department of Immigration and Citizenship received an application for a protection visa from me.
    • 3. On 8 May 2010 the delegate of Department of Immigration and Citizenship refused my application for a protection visa.
    • 4. On 8 June 2010 the Tribunal received my application for review of the delegate’s decision. On 27 August 2010 I attended the hearing before the Tribunal. On 3 September 2010 the Tribunal refused my application.

I am unhappy with the decision, I must apply to the Federal Magistrate Court for judicial review of the decision. I believed a jurisdictional error has been made.

Ground 1

11. The first allegation made in the application asserts that the Tribunal failed to give the applicant a proper opportunity to make her case before it and refused her application for reasons of bias. In relation to the allegation that the applicant was denied a proper opportunity to put her case before the Tribunal, it must be noted that she was invited to appear before the Tribunal and did so, where she gave evidence and made arguments in support of her claim to be entitled to a protection visa. Moreover, when, in purported compliance with s.424AA, the Tribunal put a number of matters to the applicant and asked her whether or not she needed additional time in which to respond to them, she did not take up the Tribunal’s offer of additional time. Nor, according to the material contained in the Court Book which is exhibit A in this proceeding, did she make any further submissions to the Tribunal following its hearing.
12. Further, nothing in the summary of the Tribunal’s hearing appearing in its decision record suggests that the applicant was prevented from putting her case to the Tribunal in the way that she wished. In this regard, no transcript of the Tribunal’s hearing has been placed before the Court which would suggest that the Tribunal’s summary of the hearing before it failed to give a proper impression of what occurred during that hearing.
13. The allegation that the Tribunal “simply refused my application base on bias against me” is, like the first aspect of the first allegation, unparticularised. Consequently, it is not clear whether the applicant alleges actual or apprehended bias against the Tribunal. In relation to the former, I do not conclude that the only evidence before the Court touching on the issue of bias, namely the Tribunal’s decision record, supports a finding that the Tribunal approached the applicant’s review with a state of mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments might have been presented: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. Also, the Tribunal’s account of the hearing before it indicates that it approached its task in a conscientious manner and with a mind which was open to persuasion.
14. To the extent that the allegation of bias is one of apprehended bias, the question 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 have been bringing an impartial mind to the resolution of the question it had to decide: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488. Again, the only evidence touching on the possible allegation of apprehended bias is what is contained in the Tribunal’s decision record. As noted earlier in these reasons, no transcript of the hearing before the Tribunal has been placed before the Court. For the reasons already given, a review of the Tribunal’s summary of the hearing before it does not support a conclusion that a fair-minded lay observer might reasonably have apprehended that the Tribunal might not have been bringing an impartial mind to the review.

Ground 2

15. In the second ground of the application, the applicant alleges that the Tribunal did not refer to “information from any resources” about the arrest of her husband by the Chinese authorities. This allegation does not make clear to what aspect of the applicant’s husband’s detention the resources to which she says the Tribunal should have referred would have been addressed, given that the Tribunal appears to have accepted, at least implicitly, that the applicant’s husband had indeed been detained. In this regard, it could not be said that any obligation which the Tribunal may have to make inquiries was enlivened on this occasion. It is not apparent what inquiry should have been conducted, nor what benefit would have accrued from it. In such circumstances, the Tribunal had no duty to inquire or, in the applicant’s words, to refer to “information from any resources.”

Ground 3

16. In the third ground of the application the applicant alleged that the Tribunal found that she lacked credibility and did not believe that she would be persecuted were she to return to China and, further, that the Tribunal did not have evidence or materials to justify its decision and simply refused her application.
17. In relation to that aspect of the allegation relating to the issue of credibility, it should first be observed that the Tribunal’s decision did not turn principally on an adverse finding as to the applicant’s credibility. Rather, it concluded that the version of events proffered by the applicant did not, on analysis, support a conclusion that she would face harm were she to return to China.
18. However, that said, it must be accepted that the Tribunal did question the genuineness of the applicant’s claim to fear persecution because she had not acted promptly to make a claim for protection. Plainly, this was a factor in the Tribunal’s decision, but how significant it was in the reaching of that decision is unclear. Nevertheless, whatever significance that conclusion may have had, absent vitiating conduct which is not apparent here, findings on credibility are matters par excellence for the Tribunal and ones in respect of which the Court cannot substitute its own views for those of the Tribunal. The fact that an adverse credibility finding was made by the Tribunal is not, without more, a reason to set its decision aside.
19. The second element of the third ground of the application suggests that in order for the Tribunal to affirm the decision of the delegate it had to have had evidence contradicting the applicant’s claims, or at least something in the nature of a negative case. This is not so. The issue is whether the Tribunal is satisfied that the applicant has a well-founded fear of persecution for a Convention reason and although an applicant does not bear a formal onus of proof, he or she does have a practical task to satisfy the Tribunal that they meet the criteria for the grant of a protection visa.
20. If an applicant fails to produce evidence and arguments which satisfy the Tribunal that he or she does have a well-founded fear of persecution for a Convention reason, as that expression is understood in the context of the Act, then his or her application must be unsuccessful. It is not necessary that there be a negative case to meet the applicant’s case or one which contradicts the applicant’s case. Consequently, the second element of the third ground does not disclose jurisdictional error on the Tribunal’s part.
21. Finally, in relation to the third ground of review, the assertion that the Tribunal “simply refused” the applicant’s application overlooks the detail of the review which the Tribunal undertook, in particular, during the course of the hearing which the applicant attended. It also fails to have regard to the detailed and cogent reasons for the Tribunal’s findings which appear in its decision record under the heading “Findings and Reasons.” In this regard it should be observed that the Tribunal’s findings were open to it on the evidence and it cannot be concluded that the Tribunal “simply refused” the applicant’s application.

Ground 4

22. The final ground appearing in the application expresses the applicant’s hope that her application could be reconsidered by the Court. As explained earlier in these reasons, the Court cannot re-hear the applicant’s protection visa application, that being the role of the Tribunal. The Court’s task is to ensure that the Tribunal applied proper procedures and properly applied the law in reaching its decision. For these reasons, the final ground appearing in the application does not disclose a basis upon which the Tribunal’s decision might be set aside.

Conclusion

23. As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Cameron FM

Date: 7 March 2011