SZMOO v Minister for Immigration and Citizenship

THE TRIBUNAL'S DECISION 5 The Tribunal was not satisfied that the appellant was a "witness of truth and [was] of the view that she [had] not given a truthful account of her past experiences in China." In support of this conclusion, the Tribunal noted, among other things, that the appellant had earlier unsuccessfully applied for two Australian visitor visas, one in March 2006 and the other in April 2007. The stated purpose of these visits was to visit her son in Australia and to make money to service the debt incurred in relation to her son's studies. The Tribunal noted that in the first application, the appellant stated she was unemployed. In the second application, she stated she was employed as an office manager, yet this claim could not be verified by officers of the Department. The Tribunal therefore disbelieved the appellant's claims, in particular, that her husband and herself had operated a stone materials business in China at the relevant time. 6 The Tribunal also relied upon some "significant inconsistencies" in the appellant's evidence before the Tribunal, in her interview with the Department and in her statement in support of her visa application, including: the stated purpose behind the PSB's slate order; whether she went into hiding after her release from detention; and the period during which the stone materials business had operated and its name. Based on all these findings, the Tribunal did not accept that the appellant had a well-founded fear of Convention-related persecution if she were to return to China.

THE FEDERAL MAGISTRATE'S DECISION 7 In her application for judicial review to the Federal Magistrates Court dated 30 July 2008, the appellant contended (as summarised by the Federal Magistrate: see [2008] FMCA 1581 at [23]) that: 1. The Tribunal affirmed the delegate's decision based on its rejection of the appellant's credibility. 2. The Tribunal made is (sic: its) adverse decision about the appellant's credibility based on significant inconsistencies in the appellant's evidence and the fact that she had made two applications for a visitor visa to enter Australia prior to the time when she claimed to have suffered any harm in China. 3. The Tribunal made a mistake in regarding the appellant's two prior applications for a visitor visa as a reason for rejecting the Applicant's credibility. 4. There was no evidence that the Tribunal considered the appellant's claims, which were given to the Tribunal in the Applicant's statutory declaration in response to the Tribunal's s 424A(1) letter. 5. The Tribunal's finding of "significant inconsistencies" was mainly based on a comparison of the appellant's evidence at the Departmental interview with her evidence at the Tribunal hearing. There was no evidence in the Tribunal's decision that the Tribunal considered the Applicant's claims given in response to the Tribunal's letter under s 424A(1). 6. It was unfair that the appellant was not provided with a recording or a transcript of her interview with the Minister's delegate and the Tribunal erred in law by not providing this recording or transcript. The inconsistencies could have arisen in one or more of these ways: · The interpreter at the interview could have made mistakes or misunderstood the questions or the appellant's answers; · The officer from the Department who conducted the interview could have made mistakes or misunderstood the appellant's answers; · The appellant may have misunderstood the questions. 8 The Federal Magistrate dismissed the appellant's application. In relation to the information the appellant provided in her two earlier visitor visa applications, the Federal Magistrate held, first, that s 424A(3)(b) and (ba) did not apply to this information because it did not come within the terms of those provisions. Secondly, his Honour held that the Tribunal had made every effort to comply with the procedure set out in s 424A(2A) but eventually gave up after receiving "nonsensical answers from the appellant". Finally, on this aspect, his Honour held that the Tribunal then "complied in every respect with the requirements of s 424A in putting to the [appellant] in writing its concerns about her credibility when considering her earlier applications for visitor visas.": see 2008 FMCA 1581 at [39]. 9 His Honour also rejected the appellant's contentions that the Tribunal had failed to consider the appellant's statutory declaration submitted in response to the Tribunal's s 424A letter because the Tribunal had, in fact, set out the entire text of that document in its Decision Record and then referred to it in the Findings and Reasons section. Further, his Honour found that there was no procedural unfairness in the Tribunal's procedure as alleged in grounds of review 1 - 5 inclusive. 10 Finally, with regard to the appellant's contention that she should have been provided with a record of her interview with the delegate, his Honour followed the reasoning of Flick J in SZKOB v Minister for Immigration and Citizenship [2007] FCA 1949 and held that there was no requirement to do so in the Act. Otherwise, his Honour found that the appellant was "essentially … cavilling at the Tribunal's factual findings and [was] … therefore no more than an attempt at merits review": see [2008] FMCA 1581 at [43].

THE PRESENT APPEAL 11 On 19 December 2008, the appellant filed a notice of appeal with this Court, which alleges two grounds of appeal, as follows: 1. The Federal Magistrate erred in law 2. The Federal Magistrate was wrong in finding that the Refugee review Tribunal (the Tribunal) acted properly in its finding. Particulars: 1. His Honour failed to consider, properly and correctly, that there is a jurisdictional error in the Tribunal's decision. 2. It is no doubt that the Tribunal's decision has included a reasonable apprehension of bias. Apparently, it is definitely improper and must be unfair to reject my credibility significantly on the ground that I have previously made two applications for visitor visas to come to Australia. Particularly, the tribunal has already noted that they have happened prior to when I claimed to suffer any harm in China. 3. The tribunal may not be obligated to provide me a record, such as CD or transcripts, in relation to my interview at the Department. But, the Department, the first respondent, must be obligated to do so. In other words, the department must err in law while it has dealt with my case. 4. Particularly, in relation to significant inconsistencies in my evidence, the tribunal's finding was mainly based on it comparing my evidence given at the departmental interview and the ones obtained at the Tribunal's hearing. So, the Tribunal must be obligated to provide me a record, such as CD or transcripts, in relation to my interview at the Department; otherwise, it would be impossible for me to collect what the exact question had been put to me at the Departmental interview or how I had answered it. Particularly, it would be impossible for me to examine or inspect whether the interpreter at the Departmental interview interpreted, properly and accurately, the delegate's questions or my responses. 5. As a matter of fact, those inconsistencies might be raised owing to the following reasons: · The interpreter at the Departmental interview might have made mistakes or misunderstood the questions given by the immigration officers or misunderstood my answers to the immigration officers questions; · The immigration officer might have made mistakes or misunderstood my answers to the questions or raised its questions incorrectly or made mistakes while he took the notes; · I might have misunderstood the questions put by the immigration officer. 6. it is no doubt that providing my copy of recording CD or transcript in relation to my Departmental interview must be particularly important for me to clarify those inconsistencies, which the Tribunal has considered as one of [the] significant reasons in refuse [sic] my credibility. But, the Tribunal failed to do so; and even failed to give me an explanation about it. It is definitely unfair and the Tribunal has definitely erred in law. 12 At the hearing of the appeal before me on 27 February 2009, the appellant appeared in person, unrepresented, but assisted by an interpreter. Ms Nanson appeared for the first respondent. 13 The appellant did not file any written submissions. Her oral submissions at the hearing before me were essentially to the same effect as the particulars of her grounds of appeal (above). 14 Ms Nanson had earlier filed an outline of written submissions. With the exception of one minor correction, she was content to rely upon those written submissions. In summary, they were as follows: 1. The claim of apprehended bias was not raised as a ground of review before the Federal Magistrate and the appellant therefore required leave to raise it for the first time on appeal before this Court. 2. Leave should be refused because the appellant had not given any explanation as to why this ground was not raised before the Federal Magistrate and because the ground had no merit. 3. The ground had no merit because the Tribunal was entitled to take into account that evidence of the previous visitor visa applications and it was not precluded from doing so simply because those applications were made before the appellant claimed to suffer harm in China at the hands of the PSB. Furthermore, the Tribunal took steps to ensure the appellant was on notice about its concerns about this information. Accordingly, there was nothing in the decision of the Tribunal which would allow an inference to be drawn that "a fair minded lay observer might reasonably 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) 179 ALR 425 at [27]-[32]. 4. There is no provision of the Act that requires either the Department or the Tribunal to provide to the appellant a record of her interview with the delegate. 5. The appellant's challenge to the "significant inconsistencies" identified by the Tribunal was a challenge to the Tribunal's fact finding role and therefore amounted to an attempt to conduct merits review which was not available on a judicial review: see SZKOB v Minister for Immigration and Citizenship [2007] FCA 1949 at [17] per Flick J.

CONSIDERATION 15 In my view, the two stated grounds of appeal are so general as to be meaningless. I will therefore assume that the essence of the appellant's concerns about the Federal Magistrate's decision are contained in the particulars of the two stated grounds. Turning to consider those particulars/grounds, the first is, like the two stated grounds of appeal, so general as to be meaningless. Specifically, no jurisdictional error has been identified in this particular/ground and without any being identified, it is not possible to detect what particular aspect of the Federal Magistrate's decision is of concern to the appellant - none is immediately apparent to me. It follows, in my view, that this particular/ground must be rejected. 16 The second particular/ground seeks, in part, to raise an allegation of apprehended bias on the part of the Tribunal. It is clear from a plain reading of the grounds of review before the Federal Magistrates Court (see paragraph [7] above), that the appellant did not expressly or implicitly raise any allegation of apprehended bias before the Federal Magistrate. Furthermore, no such allegation is mentioned in the Federal Magistrate's Reasons for Judgment. The appellant therefore requires leave to raise this ground for the first time on appeal before this Court. In such an application, the appellant has to establish that it is expedient in the interests of justice that the issue should be argued and decided on this appeal: see VAAC v Minister for Immigration & Multicultural & Indigenous Affairs ('VAAC') [2003] FCAFC 74; (2003) 129 FCR 168 at [23]-[24]. Whether it is expedient in the interests of justice to entertain a new ground on appeal requires consideration of a number of matters, including: the appellant's prospects of success on the appeal on the new ground; the explanation given by the appellant for failing to raise the new ground before the Federal Magistrates Court; the prejudice that may be suffered by the respondent in allowing the appellant to raise the new ground on this appeal; the potentially serious consequences for the appellant if leave is refused; and the integrity of the appellate process: see VAAC at [24] and [26]. 17 In circumstances where the appellant was unrepresented before the Federal Magistrates Court and is unrepresented before this Court, I do not consider it is appropriate to count against her the absence of an explanation for failing to raise this ground before the Federal Magistrate. Furthermore, no prejudice has been alleged by counsel on behalf of the first respondent and, while the appellant has not specifically raised this submission, it is self-evident that there could be potentially serious consequences for the appellant if leave to raise this new ground on this appeal were refused. However, notwithstanding these considerations, I would refuse leave to raise this new ground on this appeal because I do not consider it has any prospects of success. 18 Because the allegation of apprehended bias has been raised by the appellant in connection with the way the Tribunal dealt with the information contained in the appellant's earlier two applications for Australian visitor visas, it is necessary to closely examine how the Tribunal dealt with this information. That, in turn, raises for consideration the provisions of ss 424A and 424AA of the Act. Before turning to consider those provisions, it is appropriate to set out the principles relevant to an allegation of apprehended bias, such as arises here. 19 First, I agree with Ms Nanson's submission that the crucial question is whether "a fair minded lay observer might reasonably 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) 179 ALR 425 at [27]-[32]. Secondly, the High Court has made it clear that an allegation of bias must be distinctly made and proven: see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [69] per Gleeson CJ and Gummow J. Finally, of particular relevance to this case, it has been held by this Court that it would be a rare and extreme circumstance where bias on the part of the Tribunal would be established simply by reference to the reasons given by the Tribunal: see SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] per Von Doussa J and SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 at [16] per Tamberlin, Mansfield and Jacobson JJ. 20 Section 424A(1) of the Act provides: (1) Subject to subsections (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. 21 Sub-section (3) of s 424A sets out four exceptions where s 424A does not apply. Relevant to this appeal, they include the following two exceptions: (3) This section does not apply to information: … (b) that the applicant gave for the purpose of the application for review; or (ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or … 22 In my view, the information the appellant provided to the Department in her two earlier visitor visa applications was not information that the appellant gave for the purpose of her application for review. Nor, in my view, was it information that the appellant gave during the process that led to the decision that is under review. It was clearly information the appellant provided to the Department quite separately from the review process and for the sole purpose of applying for the two visitor visas. I therefore agree with the Federal Magistrate that this information did not fall within the exceptions created by s 424A(3)(b) or (ba) of the Act: see [2008] FMCA 1581 at [36]. 23 Section 424A(2A) of the Act provides: (2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA. 24 Section 424AA of the Act provides: If an applicant is appearing before the Tribunal because of an invitation under section 425: (a) the Tribunal may orally give to the applicant 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) if the Tribunal does so--the Tribunal must: (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and (ii) orally invite the applicant to comment on or respond to the information; and (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and (iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information. 25 In this matter, the appellant did appear before the Tribunal following an invitation issued by the Tribunal under s 425 of the Act, so the procedure set out in s 424AA was available to be used by the Tribunal at the hearing if it chose to do so. The appellant did not adduce into evidence before the Federal Magistrates Court a transcript of the hearing before the Tribunal. It follows that the only evidence as to what occurred during the hearing before the Tribunal appears from the Tribunal's Decision Record. 26 It is apparent from the Tribunal's Decision Record that at the hearing the Tribunal did attempt to orally give to the appellant particulars of the various pieces of information that the Tribunal considered might affect its decision. In that process, the information in relation to the two visitor visa applications was raised with the appellant orally on numerous occasions. On each occasion, the Tribunal member attempted to explain to the appellant the different ways in which that information was relevant to the review. The following are some examples: When asked what was happening in 2006 that led her to apply for a visitor visa, the applicant said because she had borrowed money for the factory and she wanted to come to Australia. She said that later on she had a major problem. The Tribunal indicated that the applicant's evidence may lead it to doubt that any harm came to the applicant in China. The Tribunal noted that the applicant has said that the factory was in debt in 2006 and she wanted to come to Australia, which indicated that she wanted to come to Australia for financial reasons and makes the Tribunal doubt that anything occurred in July 2007. The Tribunal noted that the applicant had put in very detailed claims as to what occurred in China but without an explanation as to why she applied for visitor visas twice before any of the events she claimed happened, leading the Tribunal to doubt her credibility. The Tribunal noted that the applicant had said she applied to come to Australia because the factory was in debt. The applicant confirmed that this was the case and said that she later suffered a problem. … The Tribunal noted that the applicant had applied for visitor visas in March 2006 and April 2007, which is before 6 July 2007, when the applicant claimed she had suffered harm in China. The applicant had said in her evidence that she applied for these visas because she was suffering financial difficulty. The Tribunal indicated that it thought it was particularly significant that the applicant had applied for visitor visas before a time she claimed to suffer any harm and that it may indicate to the Tribunal that the applicant wished to come to Australia for reasons other than a fear of persecution. 27 As appears from the following paragraph of the Tribunal's Decision Record, the Tribunal appears to have had some considerable difficulty at the hearing conveying an understanding of the relevance of this information to the appellant: The Tribunal asked the applicant if she understood the information and why it was relevant and whether there was any part of the information the applicant would like the Tribunal to go over. The applicant asked the Tribunal to say it again. The Tribunal asked which part the applicant would like repeated. The applicant said she was very confused and could not remember anything. The Tribunal said it would go over it again. 28 After explaining, yet again, why it considered this information was relevant to the review, the Tribunal recorded that: … The Tribunal asked whether the applicant wished the Tribunal to go through the information again. The applicant said that it would be the same. She said that she was working and she cannot remember what happened before and what was said before. The applicant said she had walked into the cool room and she cannot remember anything that happened before. When the Tribunal asked for an explanation, the applicant said that she is 46 or 47 and she cannot remember. The Tribunal indicated it would not think being 46 or 47 would be a reason you would not be able to remember. The applicant said that she does not like to remember what happened before. The Tribunal indicated it would go through the information once more. 29 After one final attempt to explain the relevance of the information, the Tribunal adjourned the hearing for 15 minutes. It then reconvened and advised the appellant that: "due to the [appellant's] reaction it would stop attempting to put the information orally … [but] it would put the information in writing to the [appellant] and invite her to provide written comments." 30 It is therefore obvious from the Tribunal's Decision Record that it attempted to make use of the procedure set out in s 424AA at the hearing, but eventually abandoned that attempt after repeated unsuccessful attempts to convey an understanding of the relevance of the information to the appellant. 31 It follows that since the information about the two visitor visa applications did not fall within the exceptions set out in s 424A(3)(b) or (ba) (see [22] above) and since the Tribunal was forced to abandon its attempt to use the procedure set out in s 424AA (see [30] above), the Tribunal was therefore forced to put the information to the appellant in writing under s 424A(1). 32 The Tribunal did this by sending a letter to the appellant on 3 June 2008, setting out the details of the information concerned. The appellant responded to that letter by submitting a Statutory Declaration to the Tribunal on 17 June 2008. 33 The relevant parts of both the Tribunal's letter and the appellant's Statutory Declaration are set out in full in the Tribunal's Decision Record. In so far as it related to the two visitor visa applications, the Tribunal's letter of 3 June 2008 stated: The particulars of the information are: · In March 2006, you applied for a visitor visa. The Department's case notes indicate that you stated you were applying to visit your son who was studying in Australia. You indicated to the department that you were unemployed. The Department refused the application. · In April 2007, you applied for a visitor visa. The Department's case notes indicate that you stated you were applying to visit your son who was studying in Australia. You indicated to the Department that you were employed as an Office Manager of Fuqing LiTong Stone Co Ltd. The Department noted that it called the company and that you answered the phone. The Department's notes state "She claims that she is the only staff in the General Office which is only the 3rd floor of the office building. Sound of music and child's talking could be heard in the room during the telephone interview. A/t claimed the sound was from a company which is on the other side of the road. A/t appeared unnatural when talking about company business. A/t claimed that the Financial Department is on the 2nd floor. She advised me [to] call the department on 0591-85922696. Tried the number, it is power off. Therefore, it is not an office telephone number at all". The Department refused the application. This information is relevant to the review because it may indicate that you had sought to come to Australia prior to when you have claimed you suffered any harm in China, which according to your claims was not until 6 July 2007. You told the Tribunal that the reason you lodged these visa applications was because you were in financial difficulty. You also stated that you would like to remain in Australia so you can repay your debts. The Tribunal may find that this information is inconsistent with the claims you have made that you suffered harm in China and that you fear persecution if you were to return to China. The information is also relevant because it may lead the Tribunal to doubt that you or your husband ever owned a stone material business as claimed, particularly as you claimed you were unemployed in your March 2006 visitor visa application and that you were an Office Manager in your April 2007 application and your employment could not be verified. This in turn may lead the Tribunal to find that you and your husband did not supply slate to the PSB as claimed, that you did not organise a protest as claimed, that you were not detained as claimed, or that you continued to come to the attention of the Chinese authorities as claimed. 34 The relevant parts of the appellant's Statutory Declaration that responded to those parts of the Tribunal's letter set out above, were as follows: 1. I have to accept that I might have applied for a visitor visa, respectively in March 2006 and April 2007. I have to clarify that main purpose of these visa applications was to visit my son who was studying in Australia; because at that time, I did not get any troubles with the Chinese government. 2. I have to accept that I might have ideas to make money in Australia in order to support my son's study while I lodged two above-mentioned visa applications respectively in March 2006 and April 2007; and that it was because that it was very a heavy burden for me and my husband to undertake expensive tuition fee for son; and that we were in debts due to arranging my son to study in the overseas. … 5. So, when I applied for a visitor visa in March 2006 or in April 2007, it was for the purpose to visit my son or might be with the idea of making money. But, when my husband asked his friend to assist me to apply for current visitor visa (the third visit application), the purpose is completely different. It is no doubt for the purpose to escape from persecution by the Chinese government. 6. I might have to accept some of my mistakes while I had applied for the visit visas in March 2006 and April 2007. As a matter of fact, these applications were also organised by my husband's friend; and I did not have too much knowledge about it actually. So, while I was interviewed by the immigration officers over the phone, I was very nervous. But, it is definitely truth that both my husband and I have run a stone company since 1998. The business was verified by Australian Immigration Office in China while my son had applied for his student's visa; and the business was once again verified by Australian Immigration Officer in China while I applied my current visit visa (the third visit application). 35 In my view, the Tribunal's letter of 3 June 2008, complied fully with s 424A(1) of the Act. It set out clear particulars of the information about the two visitor visa applications that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. It explained in simple terms why that information was relevant to the review and, finally, it invited the appellant to comment on, or respond to, that information. 36 Furthermore, it is clear from the terms of the appellant's Statutory Declaration that she understood why the information in relation to the earlier two visitor visa applications was relevant because, in it, she clearly sought to distinguish between the purposes of the earlier two visitor visa applications and the purpose of her protection visa application. The appellant also sought to explain the critical statements in the two visitor visa applications about her employment status by claiming those applications were prepared by someone else and she had no knowledge about them. Ultimately, the Tribunal rejected the appellant's explanations given in her Statutory Declaration. 37 So, in summary, based upon the Tribunal's Decision Record, which is the only relevant material before me, I consider the Tribunal has complied fully with the relevant provisions of ss 424A and 424AA. Moreover, in my view, there is nothing in the way the Tribunal dealt with the information in the appellant's earlier two visitor visa applications, which would support a conclusion that a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided. It follows that this is not one of those rare and extreme circumstances where bias has been established simply by reference to the Tribunal's Decision Record. For these reasons, I refuse leave to the appellant to raise the apprehended bias ground as a new ground on this appeal. 38 That leaves for consideration the balance of the second particular/ground and the remaining four particulars/grounds. Dealing with the former, in my view, this particular/ground merely amounts to an attempt to attack the Tribunal's adverse credibility findings. Such findings are the function of the Tribunal par excellence: see Minister for Immigration and Multicultural Affairs Re Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. Accordingly, I agree with the Federal Magistrate's conclusion on the similar issue before him: see [2008] FMCA 1581 at [43]-[44]. As it discloses no error on the part of the Federal Magistrate, the balance of the second particular/ground must therefore be rejected. 39 The remaining particulars/grounds (3 to 6 inclusive) essentially complain about the Tribunal's failure to provide the appellant with a record, whether by way of a compact disc or a transcript, of the appellant's interview with the Department so that she could explain or clarify the inconsistencies that the Tribunal said were apparent from what she said in that interview and what she said at the hearing before the Tribunal. This is the same complaint as was made in SZKOB v Minister for Immigration and Citizenship [2007] FCA 1949, where Flick J rejected that complaint stating that: "Neither that Part nor any other provision of the 1958 Act requires a claimant to be provided with a transcript or a tape recording of an interview with the Department.": see at [13] and also at [14]. I respectfully agree with his Honour's conclusions in this respect. For these reasons, these remaining four particulars/grounds must also be rejected.

CONCLUSION 40 For the reasons I have given above, neither of the two stated grounds of appeal is intelligible and none of the particulars/grounds of appeal has any merit. This appeal must therefore be dismissed. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate: Dated: 13 March 2009 Appellant: In person

Solicitor for the First Respondent: Australian Government Solicitor