SZHYH v Minister for Immigration and Citizenship

14 The definition of 'refugee' in the Convention is couched in the present tense, and the text indicates that the position of the putative refugee is to be considered on the footing that that person is outside the country of nationality. The reference then made in the text to 'protection' is to "external protection" by the country of nationality, for example by the provision of diplomatic or consular protection, and not to the provision of "internal protection" provided inside the country of nationality from which the refugee has departed (per McHugh and Gummow JJ in Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at [62] ('Khawar'), cited with approval by Gummow, Hayne and Crennan JJ in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 ('SZATV') at [16]). 15 The definition of 'refugee' presents two cumulative conditions, the satisfaction of both of which is necessary for classification as a refugee. The first condition is that a person be outside the country of nationality 'owing to' fear of persecution for a relevant Convention reason, which is well-founded both in an objective and a subjective sense. The second condition is met if the person who satisfies the first condition is unable to avail himself or herself 'of the protection of' the country of nationality. This includes persons who find themselves outside the country of their nationality and in a country where the country of nationality has no representation to which the refugee may have recourse to obtain protection. The second condition also is satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality; that particular reason is that well-founded fear of persecution in the country of nationality which is identified in the first condition (per McHugh and Gummow JJ in Khawar at [61], cited with approval by Gummow, Hayne and Crennan JJ in SZATV at [16]. See also Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ('Chan'); Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 ('Applicant A') at 283, and Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 ('S152') at [19]). 16 It is well settled since Chan and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 ('Guo') at 571-572 and 596 that the requirement that that 'fear' be 'well-founded' adds an objective requirement to the examination of the facts and that this examination is not confined to those facts which form the basis of the fear experienced by the particular applicant (per Gummow, Hayne and Crennan JJ in SZATV at [18]). A fear is 'well-founded' where there is a real substantial basis for it (see Guo at 572). 17 In conducting a review, one of the requirements with which the Tribunal must comply is to be found in s 424A of the Act. Section 424A relevantly provided: '424A(1) Subject to subsection (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. …' 18 In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 ('SZBYR') the High Court gave close attention to the circumstances in which s 424A was engaged. The court's consideration was primarily directed at s 424A(1)(a) of the Act. Whilst it did not deal expressly with s 424A(1)(b), it made a number of general observations in respect of s 424A which demonstrate that the scope of the 'it' referred to in s 424A(1)(b), namely, the 'information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review' is limited. 19 In their joint reasons for judgment, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ commenced their consideration of s 424A by observing that firstly, its effect was mandatory, in that a breach of it constituted jurisdictional error, and secondly, that its temporal effect was not limited to the pre-hearing stage, referring to the court's earlier judgment in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 ('SAAP') (see SZBYR at [13]). 20 At [22] their Honours drew attention to the 'limited scope of s 424A' and at [15] and [21] they said: '[15] … Section 424A does not require notice to be given of every matter the tribunal might think relevant to the decision under review. … … [21] … Section 424A has a more limited operation than the appellants assumed: its effect is not to create a back-door route to a merits review in the federal courts of credibility findings made by the tribunal. …' 21 Importantly, their Honours found at [17] that the use of the future conditional tense (would be) rather than the indicative strongly suggested that 'the operation of s 424A(1)(a) [was] to be determined in advance - and independently - of the tribunal's particular reasoning on the facts of the case' (emphasis added). 22 At [18] their Honours approved a passage in the joint reasons for judgment of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477 saying: '… Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information": "… does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc. …" If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. …' (footnotes omitted and emphasis added) 23 In the appellant's written submission in SZBYR they appear to have focused on the requisite 'information' as being the 'inconsistencies' between their statutory declaration and oral evidence. However, as their Honours pointed out at [15], in oral argument they focused on the provision of the relevant passages in the statutory declaration itself, from which the inconsistencies were later said to arise. At the end of the day their Honours found that s 424A was not engaged at all. They said at [21]: 'The short answer to all these points is that, on the facts of this case, s 424A was not engaged at all: the relevant parts of the appellants' statutory declaration were not "information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review".' 24 At [17] their Honours pointed out that the Tribunal did not operate in a statutory vacuum, and that its role was dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. They pointed out that the appropriate criterion in respect of a protection visa was to be found in s 36(1) of the Act. They proceeded to say at [17]: '… The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light [the operation of s 424A(1)(a) having to be determined in advance - and independently - of the tribunal's particular reasoning on the facts of the case], it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. …' (emphasis added) 25 In this appeal the appellant has raised the question of bias or apprehension of bias. I would respectfully adopt as the applicable test for apprehension of bias, the test as summarised by McHugh J in Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 ('Hot Holdings') where, in relation to administrative decision-making, at [68] his Honour effectively paraphrased what had been said by Gleeson CJ, Gaudron and Gummow JJ in Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 ('Re RRT; ex parte H') at [27]-[28]: '68 The rules of natural justice require that any decision of a Minister that affects a person's rights, interests or legitimate expectations must be unbiased and free from any reasonable apprehension of bias. Where an administrative decision is made in private, the test for apprehended bias is whether a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process, might reasonably apprehend that the decision-maker might not have brought an impartial mind to making the decision. In deciding the issue, the court determines the issue objectively.' (Footnote omitted) As McHugh J said at [70]: '70 While the test for a reasonable apprehension of bias is the same for administrative and judicial decision-makers, its content may often be different. …' 26 In Re RRT; ex parte H the High Court considered a case where it had been suggested that an applicant before the Tribunal had been overborne or intimidated by the Tribunal. In the result, in the exercise of its discretion, the Court ordered prohibition to prevent further action being taken on the decision of the Tribunal. 27 At [29]-[32] in Gleeson CJ, Gaudron and Gummow JJ said: '[29] Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, … be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented. [30] Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings. [31] Where … parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view. [32] In the present case, a fair-minded lay observer or a properly informed lay person, in our view, might well infer, from the constant interruptions of the male prosecutor's evidence and the constant challenges to his truthfulness and to the plausibility of his account of events, that there was nothing he could say or do to change the tribunal's preconceived view that he had fabricated his account of the events upon which he based his application for a protection visa. In other words, a fair-minded lay observer or a properly informed lay person might well apprehend bias by the tribunal against the male prosecutor. … [33] Although, in our view, the prosecutors have made good their claim of apprehended bias, we would not grant relief under s75(v) of the Constitution simply on that account. It is now established that, in the case of a breach of the rules of natural justice, relief under s75(v) of the Constitution is discretionary. Where, as here, there is a final determination by a superior court, that the decision in question was not affected by actual bias, discretionary considerations necessarily arise. …' (Footnotes omitted) 28 The appellant was born in October 1967 in Fuqing in the People's Republic of China. He arrived in Australia on 3 May 2005, having departed from China on 2 May 2005. He had previously visited Australia for four days in 2004. He travelled to Australia on a passport issued to him on 8 November 2002, and entered Australia on a visa issued to him on 28 April 2005. That visa was obtained pursuant to an application for same received on 22 April 2005. The visa application was apparently accompanied by a 'To whom it may concern' communication from 'Fujian Fuqing Longxing Color Printing CO., LTD.' of 10 April 2005 which recorded details of the appellant's employment by that company. 29 In the appellant's application for a Protection (Class XA) visa, which was lodged on 17 May 2005, he was required to give details of 'all your past employment'. He did not mention employment with 'Fujian Fuqing Longxing Color Printing CO., LTD.' but referred only to employment between August 1998 and December 2004 with 'Fuzhou Chuangxin Computer Co. Ltd.', where he was said to have worked as a senior manager. The appellant's application for a protection visa was supported by a four-page statutory declaration which appears to bear a date of 5 May 2005. The statutory declaration referred to the previous employment of the appellant with the computer company. He contended that he had resigned from that company in December 2004, after he was elected as the 'President of my home village'. 30 The electoral process would appear to have commenced in November 2004. The appellant claimed that the election took place on 25 December 2004. He asserted that his election as president needed official endorsement, and that he had to wait for an official appointment letter, which would have to be approved by the government in Fuqing City. He says that he was told that he should resign from his current position with the computer company, and he claimed that he did so. 31 The appellant claimed that in mid January 2005 a neighbour of his committed suicide quite suddenly, in circumstances where he was required to pay heavy taxes and levies owed to local government. Thereafter, the appellant claimed that he organised peaceful and reasonable demonstrations against the heavy taxes and levies that were imposed, and took steps in respect of the protection of basic human rights. He also claimed to have sought compensation for his neighbour's family. He claimed to have organised a sit-in protest in front of the Sanshan town's government and another in front of Fuqing City's government. 32 He says that his actions were not tolerated by the authorities, and that on 8 February 2005 he was arrested by the Public Security Bureau (the 'PSB') in Fuqing City. He says that he was denounced for having organised an anti-government protest; he was officially informed that the government refused to appoint him as the President of his village. He says that he was detained and that in the detention centre he was subject to mistreatment and torture by the policemen in the PSB. He says that he was beaten by the police. However, he claims that on 11 March 2005 he was released after his wife paid a significant amount of money by way of a bribe to some police officers. Another person is then said to have arranged for the appellant to leave China early in May 2005. 33 On 4 August 2005 a delegate of the Minister decided that the appellant's application for a protection visa should be refused. On 6 September 2005 the appellant applied to the Refugee Review Tribunal ('the Tribunal') for a review of the Minister's delegate's decision. The application for review was the subject of three separate Tribunal decisions. The first decision was that of Tribunal Member Robert Wilson, of 28 October 2005, who decided that the decision not to grant a protection visa to the appellant should be affirmed. That decision was set aside on 17 July 2007 by the Federal Magistrates Court of Australia. 34 The second decision was that of Tribunal Member Hugh Wyndham, of 26 September 2007, who also affirmed the decision of the Minister's delegate not to grant the applicant a Protection (Class XA) visa. That decision was also set aside in the Federal Magistrates Court of Australia on 15 October 2008. 35 The third decision on the appellant's application for review was that of Tribunal Member Ms Christine Long of 13 February 2009. She also decided that the decision not to grant the applicant a Protection (Class XA) visa should be affirmed. 36 The appellant sought judicial review of that Tribunal decision by filing an application in the Federal Magistrates Court on or about 16 March 2009. There were three grounds identified in the application, two of which were numbered 2. Particulars were provided in respect of the first two grounds together, and further particulars in respect of the second ground number 2 also. The primary issues raised were bias and failure to comply with s 424A(1) of the Act. 37 The application for judicial review came before the Federal Magistrates Court of Australia constituted by Emmett FM on 24 April 2009. Her Honour's reasons for judgment include the following, in respect of the question of apprehended bias: '72. During the course of his submissions in support of ground 2, the Applicant made for the first time a complaint that the interpreter at the Tribunal hearing had not interpreted everything said by the Applicant and had interpreted the Applicant's evidence incorrectly. 73. The hearing was adjourned and the Applicant directed to serve an amended application giving complete particulars of such a ground together with any evidence, including any transcript of the Tribunal hearing, and written submissions in support of the application, by 22 May 2009. …' 38 The hearing was, in fact, adjourned to 4 June 2009. At [74] her Honour continued in her reasons for judgment of 4 June 2009: '74. At the commencement of the hearing this morning, the Applicant confirmed that he had not filed any amended application, evidence or submissions in accordance with those directions [the directions referred to in paragraph 73], or otherwise. The Applicant told the Court he had nothing further to say in support of that further complaint about interpretation or in relation to any of the other grounds of his application. In the circumstances, there is no evidence before this Court to support the Applicant's unparticularised complaint about interpretation at the Tribunal hearing. A fair reading of the Tribunal's decision record does not suggest that there was any complaint made by the Applicant to the Tribunal at any time during or after the hearing about the accuracy of the interpreting.' 39 I would observe that in her original reasons for judgment delivered ex tempore, what I have quoted as paragraph 74 concluded with the words, 'of the other grounds of his application.' The subsequent words commencing 'In the circumstances …' were added by way of correction and amendment to the ex tempore judgment delivered and published on 4 June 2009 at a later date. The corrections and amendments are recorded in the appeal book at page 154. 40 Her Honour concluded that the allegation of bias or apprehended bias had not been made out. Her Honour also dismissed the claims made by the appellant of a failure on the part of the Tribunal to comply with the requirements of s 424A of the Act. 41 The learned Federal Magistrate ordered that the proceeding before the Federal Magistrates Court of Australia commenced by way of application filed on 16 March 2009 be dismissed. Her Honour also ordered that the appellant pay the costs of the respondent Minister, fixed in the amount of $5,587. By a Notice of Appeal filed 24 June 2009, the appellant appealed to this Court from the whole of the judgment of the learned Federal Magistrate. The grounds relied upon were expressed as follows: 'GROUNDS: · The Federal Magistrates Court of Australia erred in law. · The Federal Magistrates Court of Australia was wrong in finding that the Refugee Review Tribunal ("the Tribunal") acted properly in its findings. Particulars: · The Tribunal erred by making a finding which has included a reasonable apprehension of bias; · The Tribunal erred by making its findings unreasonably, illogically and based on nothing but only its unwarranted assumption; and · The Tribunal erred by failing to comply with its obligation under s.424A(1) of the Act.' 42 The appellant filed a four-page submission in support of his appeal on 14 August 2009. 43 Whilst it is not uncommon for appellants in migration matters to come before the Court and turn to interpreters for assistance, where they are quite fluent in the English language and able to read and write in English, it was apparent to me that the appellant in this matter lacked that facility and needed the assistance of an interpreter. 44 In relation to the submissions which were filed on 14 August 2009, the impression that I have is that the appellant had no understanding of what was contained therein, although he claimed to have a Chinese translation of that submission. I was at pains to ensure that the appellant understood the grounds upon which he was relying in his Notice of Appeal and asked for those grounds and the particulars provided to be interpreted for his benefit before inviting him to address the Court in relation to them. Once again, I have the clear impression that the appellant had little understanding of what had been written by way of grounds in the Notice of Appeal. 45 However, he had no hesitation in presenting oral argument in respect of alleged apprehended bias on the part of the Tribunal member who decided that the decision of the Minister's delegate should be affirmed on 13 February 2009, and he made submissions in relation to the proper application of s 424A of the Act and also s 420(1) of the Act. 46 In relation to the matter of apprehended bias, the appellant put a submission to the effect that the tribunal member and the interpreter made him feel like a criminal - they were cross-examining him. He contended that he was not given a fair opportunity to make any submissions, and he asserted that the interpreter's tone of voice was like somebody who was cross-examining him as a criminal. He said he felt persecuted before. He was nervous and that was why he was unable to speak in a normal way. He acknowledged that he had not tendered a transcript of the hearing before the Tribunal conducted by Tribunal Member Christine Long on 15 January 2009 which had lasted for a little over two hours, but says that he took a sound recording of the hearing with him to the Federal Magistrates Court and asked the magistrate to listen to the recording. He alleges that the magistrate refused to listen to the recording and says that the interpreter also asked him not to press the issue. He contended that a copy of the transcript would cost him $3,000 and that he could not afford it. He further says that one needed to listen to the tape to enable one to discern the tone of voice. 47 Whilst he mentioned that he was cross-examined by both the member and the interpreter, his observations in respect of tone of voice were made in respect of the interpreter rather than the Tribunal member. The appellant has not sought to introduce fresh evidence on the hearing of this appeal to demonstrate that he requested the learned Federal Magistrate to listen to his sound recording of the Tribunal hearing on 15 January 2009 and to prove that the Federal Magistrate declined to listen to the sound recording. 48 I would observe that it is clear that the reason why the appellant's application was adjourned on 24 April 2009 to 4 June 2009 was specifically for the purpose of allowing the appellant to file evidence to substantiate his claims of apprehended bias in respect of the conduct of the Tribunal hearing by the Tribunal member and the interpreter. 49 Her Honour observed, and I have no reason to doubt, that at the commencement of the resumed hearing on 4 June 2009, the appellant confirmed that he had not filed any Amended Application. He confirmed that he had not filed any evidence and he confirmed that he had not filed any submissions in accordance with the directions that had been given by her Honour on 24 April 2009, and that he had not filed any evidence otherwise. 50 In my view, it is not open to the appellant to assert that the tone of voice of the interpreter and the manner of cross-examination, if that is the correct word, of the Tribunal member demonstrated that a hypothetical, fair-minded person, properly informed as to the nature of the Tribunal proceedings, might reasonably apprehend that the Tribunal member might not have brought an impartial mind to making her decision. 51 As Gleeson CJ, Gordon and Gummow JJ said in Re RRT; ex parte H, where credibility is in issue, the person conducting inquisitorial proceedings, such as a tribunal member will 'necessarily have to test the evidence presented - often vigorously'. In my opinion, the claims of error founded upon a reasonable apprehension of bias must fail. 52 In relation to the alleged error of the Tribunal by making its finding 'unreasonably, illogically and based on nothing but only its unwarranted assumption', the appellant put no relevant submissions. In my view, there is no reason to depart from the finding made by the learned Federal Magistrate in her reasons for judgment (SZHYH v Minister for Immigration & Others [2009] FMCA 531 at [67]). 53 In relation to the suggested error on the part of the Tribunal in failing to comply with its obligation under s 424A(1) of the Act, the appellant had great difficulty in responding to the question asked of him as to what information he contended required notification to the appellant and an invitation to comment on or respond to it. The gravamen of the appellant's complaint, as I understand it, was to the effect that the Tribunal had regard to the 'To whom it may concern' communication of 10 April 2005 which was relied upon by the Tribunal member in assessing the appellant's credit when contrasted with his disclosure of all his past employment in response to question 38 in Part C of his application for a Protection (Class XA) visa of 17 May 2005. 54 In the light of the decision of the High Court in SZBYR, I would doubt the necessity of inviting comment on or a response to the 10 April 2005 'To whom it may concern' communication which formed part of the appellant's application for a tourist visa which was lodged on 22 April 2005. If one goes to [23] and [24] of the Statement of Decision and Reasons of Tribunal Member Long of 13 February 2009, one finds the following: '23. The first Tribunal wrote to the applicant on 27 September 2005 prior to the first Tribunal hearing and invited his comments on the fact that in his application for visitor visa he had stated that he worked for a colour printing company which the Tribunal identified and in his application for protection visa, he states that he worked for a computer company which the Tribunal also identified. 24. By letter dated 24 October 2005 the applicant responded to the Tribunal's letter. He stated that he worked at the colour printing company from 2002 until August 2004 and he normally worked 3 hours per day (15 hours per week) for the company. He stated that he also worked as a senior manager for the computer company from August 1998 to December 2004 and he normally worked about 5 hours per day (20 hours per week) for that company. …'

55 The appellant claimed to have a well-founded fear of persecution by reason of his political opinion. His claims were carefully detailed in the Statement of Decision and Reasons of the Tribunal member. Country information which had been taken into account was referred to. The question for consideration by the Tribunal was clearly stated. The problem for the appellant is that the Tribunal did not accept that the appellant left China for the reasons that he had claimed. It did not accept a number of matters which had been advanced by the appellant. It said in paragraph [49]: '49. … The reason that the Tribunal finds against the applicant in relation to these matters is that the Tribunal does not accept that the applicant is a witness of truth. The Tribunal considers that the applicant invented details about his claims to explain discrepancies and to answer the concerns of the Tribunal and make his claims sound genuine.' 56 References were made to the appellant's confused and conflicting evidence. The Tribunal member said at [55]: '55. In the Tribunal's view there is no plausible evidence before it that the applicant has suffered, or will suffer in the reasonably foreseeable future, persecution in his country, because of his political opinion, his imputed political opinion, because he is a member of a particular social group, or for any other Convention reasons. Nor in the Tribunal's view is there a real chance that the applicant will suffer persecution for a Convention reason either now or in the reasonably foreseeable future if he returns to his country.' 57 As previously indicated, the Tribunal member affirmed the decision of the Minister's delegate not to grant the applicant a Protection (Class XA) visa. In my opinion, the appellant has failed to make good any of the grounds of appeal contained in his Notice of Appeal. He has not in oral argument demonstrated any other matter which could possibly amount to jurisdictional error on the part of the Tribunal.

58 In my opinion the appeal should be dismissed with costs. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate: Dated: 3 September 2009 The Appellant appeared in person. Counsel for the First Respondent: K C Morgan

The Second Respondent filed a submitting appearance. Date of Hearing: 19 August 2009