SZLXE v Minister for Immigration and Citizenship

Federal Court of Australia|2008-08-25|Before: McKerracher J

INTRODUCTION 1 This is an appeal from a judgment of a Federal Magistrate delivered on 14 April 2008 (SZLXE & Anor v Minister for Immigration and Citizenship & Anor [2008] FMCA 467). His Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) delivered on 20 December 2007. The Tribunal in turn had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellants. 2 The appellants are citizens of the People's Republic of China (PRC) and husband and wife. They arrived in Australia on 20 May 2007. On 1 June 2007 the appellants lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 8 August 2007. On 6 September 2007 the appellants applied to the Tribunal for a review of that decision. The female appellant has pursued the claim and the appeal on the basis of being a member of the male appellant's family unit.

APPELLANTS' CLAIMS 3 Before the Tribunal the male appellant claimed to have a well-founded fear of persecution due to his political opinion. He was allegedly detained for four months after reporting corruption in an administrative body in which he worked. He gave evidence that he later organised a protest of farmers against the corrupt use of funding. The extent of his involvement in organising the protest was not at all times consistent. He alleged that he was beaten by police and villagers on this second occasion and that he fears arrest if he were to return to China.

BEFORE THE TRIBUNAL 4 The Tribunal did not accept that the male appellant was a credible witness. It referred to several aspects of his account in support of this conclusion: 1. An inability to provide details of how he had become aware of corrupt transfers of funds; 2. 'Inconsistent and unconvincing' evidence as to why he delayed reporting alleged corruption; 3. Vague evidence of what he was required to do when he was at home in March 2006 performing 'social research'; 4. An inability to describe how he organised the farmers' protest in December 2006; 5. The implausibility of the claim that he was not questioned or arrested after the protest despite his personal history; and 6. Inconsistencies between his and his wife's evidence on key matters. 5 From this it followed that the Tribunal did not accept that the male appellant was telling the truth with respect to key aspects of his claims and it rejected the claims relating to persecution allegedly suffered in China. The Tribunal accepted that medical evidence indicated that the male appellant had an injury to his leg. However, in view of its conclusions on the veracity of his evidence, the Tribunal did not accept that this indicated that the injury had been suffered as a consequence of persecution for a Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (the Convention) reason as claimed.

ON REVIEW BY THE FEDERAL MAGISTRATES COURT 6 Before the Federal Magistrate, the appellants claimed that the Tribunal committed an error of law constituting jurisdictional and procedural error; was biased; ignored or failed to consider important evidence before it; misunderstood or made a mistake in relation to an important finding of fact; and failed to give the male appellant an opportunity to comment further. 7 His Honour concluded that submissions made by the appellants before the Court were directed towards the merits of the claim. Further, his Honour could find no evidentiary foundation for a claim of bias. The Tribunal record suggested that it had discussed the male appellant's claims with him in detail, considered all aspects of those claims and had put to the appellants individually the problems and inconsistencies which it perceived in their evidence. The Tribunal also appeared to have exceeded its obligations as required under s 424AA of the Migration Act 1958 (Cth) (the Act). 8 The Federal Magistrate, in considering the Tribunal's decision in light of the claims made by the appellants, dismissed the application for review.

GROUNDS OF APPEAL 9 The notice of appeal in substance, raised the following grounds: 1. The Federal Magistrate erred in concluding that the submissions made by the then applicant went only to the merits of the Tribunal decision. The appellants contend that the submissions made before the Federal Magistrate were directed to the question of whether the Tribunal considered the appellants' claims impartially with an independent mind and making a genuine attempt to ensure that he understood the exact issues which arose in the review application. 2. & 3.The Federal Magistrate erred in failing to find that the Tribunal failed to comply with s 424AA of the Act. 4. The Federal Magistrate erred in not finding that the Tribunal decision involved a reasonable apprehension of bias. 5. The Tribunal misunderstood the appellants' claims, ignored some information and did not give the male appellant the opportunity to comment further. 10 At the hearing of the appeal before me the submission was raised for the first respondent that there was no evidence which would support the complaints of bias, reasonable apprehension of bias or that the Tribunal misunderstood the claim made for the appellants. In response to that, the male appellant indicated that he had retained the hearing tape and had taken notes of the hearing. He explained, however, that the notes were taken, to the extent he was able, while he was involved in oral exchanges with the Tribunal and also subsequently after the completion of the Tribunal hearing. There was no contemporaneous translated record of the evidence available to support any of the claims for the appellants. Both the tape and the notes were untranslated. 11 In an appropriate case where the course of oral exchanges identified a topic in respect of which it might reasonably be argued that there was apprehended bias or some other jurisdictional error, it might be appropriate then to explore in more detail, with the benefit of a translation, the content of any untranslated record of the hearing. As will be seen, however, from the argument recorded below, I was unable to identify any support for the grounds of argument raised on the appeal and therefore the absence of a translation of the notes or any portion of the hearing which was not translated did not fall for consideration.

ANALYSIS 12 To the extent that the grounds assert error on the part of the Tribunal, they will be treated as asserting a failure on the part of the Federal Magistrates Court to identify that error. It is to the Federal Magistrates Court's decision that this appeal is directed.

Ground 1 - Bias 13 Ground 1 appears to allege bias on the part of the Tribunal. It advances the point that because of acts of bias, the learned Federal Magistrate erred in concluding that the oral submissions were directed at the merits of the Tribunal decision. His Honour's conclusion that submissions went only to the merits could not, without more, support a claim of bias. No additional basis for a claim of bias was advanced. No evidence was identified which would support such a claim. 14 An allegation of bias must be distinctly made and proven: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J. It would be a rare and extreme circumstance that bias on the part of the Tribunal would be established simply by reference to the reasons produced by the Tribunal: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J. See also SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [ 16] per Tamberlin, Mansfield and Jacobson JJ. 15 The allegation of bias is entirely without foundation and is rejected.

Ground 2 and Ground 3 - section 424AA 16 These grounds may be considered together. The appellants claim that, while the Tribunal did orally provide him with the information that the Tribunal may use to uphold the decision under review, the Tribunal did not ensure that he understood this information or advise him that he may seek additional time to comment or respond to the information. 17 The learned Federal Magistrate found that the Tribunal went out of its way to ensure the hearing was fair, including a process of disclosure that purported to comply with s 424AA of the Act. The Tribunal decision does record the information on which the Tribunal relied during the course of the hearing and the consequences of such reliance was put to the appellants. They were invited to comment or respond. The Tribunal also asked the appellants if they needed additional time to comment or respond, to which the appellants replied in the negative. 18 The information that the Tribunal is required to disclose does not include the Tribunal's subjective appraisals, thought processes or determinations. It does not extend to gaps, defects, or lack of detail or specificity in evidence or to the conclusions the Tribunal reaches in terms of the weight attributed to these factors: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471. 19 In the absence of a transcript of the Tribunal hearing there is no reason to doubt that the Tribunal complied with s 424AA as it stated. 20 In this regard, it is important to note that the male appellant has failed to identify any particular 'information' within the meaning of s 424A(1) of the Act in order to enliven the Tribunal's obligation under that section. 21 The learned Federal Magistrate concluded that the Tribunal had satisfied the requirements of s 424AA and found no evidence in the Tribunal decision to decide otherwise. In my view that conclusion was correct.

Ground 4 - Apprehension of Bias 22 Apprehended bias exists where a fair minded lay observer, informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, would apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided: Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982. 23 The appellants set out quite detailed particulars as bases for the claim of apprehended bias. These appear to be the same 6 as argued before the Federal Magistrate and include the Tribunal's lack of basic knowledge about the actual situation in China and that the male appellant was misled by the Tribunal. The other bases appear to be factual assertions and complaints about the merits of the Tribunal's decision. His Honour summarised these grounds and set out his analysis of them at [10] SZLXE [2008] FMCA 467 by adoption of the Minister's submission in these terms: The second particular is a reasonable apprehension of bias. There are six bases for this particular. The first is that the Tribunal did not have the most basic knowledge about the actual situation in China. This is an assertion of fact that is not proven. Further, even if the Tribunal did not have basic knowledge about the situation in China it would not support a claim for apparent bias. The second basis is the applicant husband was misled by the Tribunal. There is no evidence to support this. (The relevant passage in the Statement of Reasons is at CB86.2). There is nothing in that passage that indicates that the Tribunal was acting in anyway that may reasonably mislead any person, let alone that it was acting in a way that might cause a reasonably informed bystander to think that the Tribunal may have prejudged the application. The third basis of this particular relates to the Tribunal's reasoning regarding the "social investigation" claimed by the applicant husband. In reality, this complaint is no more than a complaint about the merits of the Tribunal's reasoning. The Tribunal's findings were based upon the applicant husband's evidence given at the hearing, and in this respect, his inability to explain what he meant by "social investigation" for his employer. In the application, the applicants merely restate what the written claims had been in support of the protection visa application. That does not support any claim of apparent bias. The next basis is similar to the last, being no more than factual assertions and complaint about the merits of the Tribunal's reasoning. The final two bases were the Tribunal failed to carefully assess the applicants' claims and the fact that the applicant wife was nervous before the hearing and might make some mistakes. Neither of these is established on the facts and in any event do not support any finding of apparent bias. 24 It follows that his Honour found no evidence of bias and nothing in the Tribunal's decision that indicated apprehended bias. In my view, his Honour was correct in relation to the assertion that the Tribunal did not have 'the most basic knowledge about the actual situation in China'. 25 As to the particular of this ground, that the male appellant was misled by the Tribunal, he complains that he was asked about the reason why he had to wait for two months to report the alleged corruption. The Tribunal observed that the first answer he gave was that he needed time to collect more information. The Tribunal repeated similar questions again which he says made him confused. He then said that he was 'afraid to have troubles'. The Tribunal found these excuses 'inconsistent and unconvincing'. It was open on the evidence before it to do so. It was entitled on the answers and on the impression it formed of the male appellant to reach the adverse conclusion that it did when it said: The applicant's inconsistent and unconvincing explanation for this delay leads the Tribunal to doubt the credibility of his claim that he uncovered and reported the misappropriation of funds at all. 26 In the particulars to this ground of appeal, the male appellant says 'as a matter of fact, it was indeed a complicated question; and there are many reasons why I had to wait for two months'. Again, however, none of those reasons has been advanced in the appeal grounds or particulars or in the oral submissions before me. The male appellant has not argued that had he been given an adequate opportunity, he would have advanced certain reasons which should have been taken into account. The Tribunal was obviously pressing him on this point as it was entitled and, indeed, obliged to do. In the end, there is no apprehended bias point jurisdictional or other error arising from the questioning. 27 It comes down ultimately to a question of credibility in respect of which the Tribunal is best placed to make the decision and in respect of which there is no right of review in the court below or in this Court absent jurisdictional error. The balance of the items raised by the male appellant in support of apprehended bias are all within the credibility category. They all fail for the same reasons as the particular concerning the delay and do not support an allegation of apprehended bias. A fair-minded lay observer or a properly informed observer would not reasonably believe that the decision-maker did not bring an open mind to determination of the issues.

Ground 5 28 This ground is generic in nature. There appear to be no particulars to support it. The learned Federal Magistrate found that the Tribunal did not misunderstand the appellants' claims or overlook any relevant material. Rather, the Tribunal did not accept the claims. His Honour found that the Tribunal gave a fair opportunity to the appellants to comment on all the matters that were of concern to the Tribunal. 29 It was demonstrated by the Tribunal's questions and discussion with the appellants that it understood the appellants' claims. The Tribunal addressed all of the evidence before it, and rather than ignoring evidence, such evidence was rejected or given little weight. It is open to the Tribunal to consider the weight given to any particular piece of evidence. 30 There is no indication in the Tribunal decision that it failed to understand the appellants' claims or that it ignored any evidence presented to it by them. The learned Federal Magistrate was not in error in rejecting this ground. 31 In my opinion, the approach of the Federal Magistrate and his Honour's conclusions were correct.

CONCLUSION 32 The appeal will be dismissed. The appellants are to pay the first respondent's costs fixed in the amount of $2,800. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate: Dated: 25 August 2008 The Appellants represented themselves.

Solicitor for the First Respondent: Sparke Helmore

Migration Act 1958(Cth)ss 424AA

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