SZOBS v Minister for Immigration and Citizenship

The application to the Refugee Review Tribunal 8 On 25 August, the appellants made a valid application to the Refugee Review Tribunal for review of the delegate's decision. The Tribunal invited the appellants in writing to attend a hearing. The appellants attended and the hearing proceeded on 24 November 2009. 9 The Tribunal identified a number of inconsistencies in the father's evidence, including relating to the level of compensation offered for demolition of the piggery, whether the compensation would be for the buildings alone or also for the livestock, and the proportion of the value of the business that the compensation represented. The Tribunal also doubted the veracity of photographs purported to have been taken at the site of a recently demolished piggery. 10 The appellants had told the Tribunal that fraudulent documentary material had been used in support of the visa applications which had brought them to Australia. This evidence, alongside the inconsistencies in the other evidence before the Tribunal, led the Tribunal to find the appellants totally lacking in credibility. Consequently, no weight was given to a statement purporting to have come from fellow participants in the protests, nor to the release certificate said to have been issued by the Fuqing PSB. The Tribunal did not accept that the father owned a piggery or that such a piggery was demolished. 11 On 26 November, the Tribunal informed the appellants that it had upheld the decision of the Minister's delegate to decline the grant of protection visas to the appellants. The Tribunal was not satisfied that the appellants were people to whom Australia owed protection obligations. The Tribunal rejected all the appellants' claims relating to the ownership of the pig farm, the forced destruction of the pig farm, and the lack of adequate compensation paid to the appellants. The Tribunal therefore rejected the appellants' claims of participation in the protest relating to the compensation, and the claims of detention and mistreatment.

Appeal to the Federal Magistrates Court 12 The appellants made an application to the Federal Magistrates Court on 21 December 2009, seeking review of the decision on the following grounds: 1. There is a lack of procedural fairness ("the first ground") 2. My case is not fairly considered by the RRT ("the second ground"). No further particulars were given as to the basis of the appellants' claims. The appellants were given the opportunity to file an amended application, but declined to do so. The learned Federal Magistrate noted in his reasons for judgment that a large portion of the hearing was spent with the appellants seeking to agitate the substantive merit of the Tribunal decision, which fell outside the ambit of the task before the Federal Magistrate.

The first ground 13 In dealing with the first ground, the learned Federal Magistrate referred to the natural justice hearing rule articulated in s 422B of the Migration Act 1958 (Cth) ("the Act") and codified in Division 4 Part 7 of that Act. 14 The Federal Magistrate correctly noted that the natural justice rule is confined to the provisions in Division 4 Part 7 of the Act: Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62. 15 The Federal Magistrate noted that the appellant had not pointed to any of the provisions contained in Division 4 Part 7, nor said that the Tribunal had failed to meet the obligations imposed upon it by the provisions of the Division. 16 During the hearing before the Federal Magistrate, the appellants made some general complaints about the Tribunal, but it was found that these went to the merits of the Tribunal's decision, rather than to the identification of jurisdictional error.

The second ground 17 The appellants' allegations of unfairness are also not particularised. The solicitor for the respondent suggested to the Federal Magistrate that this may have been an allegation of bias of the Tribunal against the appellants. The solicitor proceeded to make submissions on that basis. 18 In order to establish bias, the Tribunal would have had to exhibit a mind so committed to a conclusion already formed that it would be incapable of alteration, nor conduct from which a fair minded lay observer (properly informed as to the nature of the proceedings, the matters in issue and the conduct concerned) would reasonably apprehend that the Tribunal might not bring an impartial mind to the matter to be decided: Re Refugee Review Tribunal; Ex Parte H [2001] HCA 28. 19 The Federal Magistrate stated the well settled proposition that a claim of bias must be distinctly made and clearly proven. It appears that no evidence was adduced by the appellant that might shed light on the issue. In particular, the transcript of the Tribunal hearing was not put before the Federal Magistrate for the purpose of considering the conduct of the Tribunal. 20 The only evidence before the Federal Magistrate in considering this allegation was the decision record of the Tribunal. The Federal Magistrate found that a perusal of the decision record reveals a clear spelling-out of the reasons upon which the Tribunal determined that it could not be satisfied that the appellant was a person to whom Australia owed protection obligations. 21 The learned Federal Magistrate found no error on the part of the Tribunal and accordingly dismissed the application.

Absence of the son from the Tribunal hearing 22 In the final moments of the hearing before the Federal Magistrate, the appellant remarked to the Federal Magistrate that his son was made to stay outside the Tribunal hearing, and had not been called to give evidence. This was confirmed by an inspection of the Tribunal's hearing record; the only piece of evidence before the Federal Magistrate which was capable of confirming it. 23 Whether the son was present but voluntarily remained outside, or if the Tribunal excluded him from the hearing, or if indeed he was not present at all may be capable of giving rise to a point of law. 24 As discussed above, the natural justice hearing rule in the Migration Act is limited to Division 4 Part 7. Under that Division, there is a requirement that the Tribunal invite an applicant for a protection visa to appear before it, in the terms of s 425: Tribunal must invite applicant to appear

(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 424C(1) or (2) applies to the applicant.

(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal. 25 The Federal Magistrate dealt with whether the son's non attendance before the Tribunal was capable of giving rise to a jurisdictional error, and rejected that contention.

Appeal to the Federal Court 26 On 28 April 2010, the appellant filed a notice of appeal in the Federal Court. The grounds raised were as follows: 1. Refugee Review Tribunal had bias against me and did not make fair decision for my application 2. I lodged application to the Federal Magistrates Court, but the Judge dismissed my application on 08/04/2010. It is not fair. I fear to go back to China as I will be put into jail. 3. I believe that my application was not considered reasonable by the judge at the Federal Magistrates Court. RRT failed to consider my risk to return to China. The appeal notice was accompanied by a brief affidavit which did not give any particulars as to the grounds of appeal. 27 At the hearing on 4 August 2010, the Court enquired as to the reason for the son's non attendance at the hearing before the Tribunal, in the context of raising some concern as to the way that issue had been dealt with by the Federal Magistrate. Having heard from counsel for the Minister, I determined that the further hearing of the matter should be adjourned, in order that relevant inquiries could be made. In the interests of giving the matter a proper hearing, I made a referral under Order 80 of the Federal Court Rules. Ms Wong of counsel was briefed to appear for the appellants. The Court expresses its gratitude to Ms Wong for taking up the matter on a pro bono basis. 28 In their submissions of 27 August 2010, the appellants did not press the issue of the son's non attendance before the Tribunal. The appellants instead requested leave to file an amended notice of appeal to raise a new ground, namely that the learned Federal Magistrate erred in failing to hold that the Tribunal failed to take into account relevant considerations. Leave was granted during the course of the hearing on 10 September 2010. This is the only ground pressed in the appeal. 29 In reliance upon that ground, the appellants submit that on or about 30 July 2009, they provided to the Department of Immigration and Citizenship a copy of an article by Maria Corazon Ebarvia, a sanitation services specialist of the Asian Development Bank, entitled 'Country Water Action: People's Republic of China, Downstream to Upstream Cleanup' ("the report"). 30 The appellants submit that the report provides "direct and unqualified support" for a number of the appellants' claims. The appellants state that: (a) The article referred to pollution problems suffered in the Jiulongjian river system, flowing from Fujian Province and the causes of the pollution, including "uncontrolled waste discharges from hog farms"; (b) Methods used to control water pollution included "relocating or closing down more than 5,000 environment-unfriendly hog farms, covering about 3 million square metres of land", and "building up more than 0.1 million cubic metres of methane or oxygenation ponds". 31 As there is no reference to the report in the Tribunal's decision, the appellants submit that I should infer that the Tribunal failed to take the report into consideration in reaching its determination. The Minister contends that no such inference should be drawn. Given my ultimate conclusion as to this ground of appeal, I need not resolve this issue. I will proceed on the basis that an inference should be drawn as contended for by the appellants. 32 The appellants contend that a failure to take into account information which is of significance to the key issues to be resolved by the Tribunal may demonstrate a failure to exercise jurisdiction. Reliance is placed on Minister for Immigration and Multicultural Affairs v SBAA [2002] FCAFC 195 and WAFP v Minister for Immigration and Multicultural Affairs [2003] FCAFC 319. 33 In WAFP, Lee, Carr and Tamberlin JJ found jurisdictional error in the failure of the Tribunal to refer to the content of an interview "because it constituted a failure to have regard to relevant material, which is so fundamental that it goes to jurisdiction": at [21]. Their Honours relied upon the judgment of McHugh, Gummow and Hayne JJ at [82] of Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 where, relevantly, it was said that ignoring relevant material in a way that affects the exercise of power is to make an error of law. 34 In SBAA at [43], Wilcox and Marshall JJ relying on Yusuf found jurisdictional error in the Tribunal's failure to take into account relevant material "of pivotal importance to the only real issue the Tribunal had to determine". 35 The material in the report upon which the appellants rely is not so fundamental to the Tribunal's decision that it goes to jurisdiction. 36 A fair reading of the Tribunal's decision does not suggest that the Tribunal came to the view that the father was not a credible witness and that his claim to have been persecuted was false, because of the Tribunal's rejection of the facts relied upon by the appellants and set out in the report. The appellant's application was not rejected because the Tribunal came to a view that piggeries had not been closed down or that pollution controls had not been imposed. The Tribunal was not satisfied that the father owned a piggery. That finding was not reliant upon any rejection of the background contention that piggeries existed along the Longjiang River and environmental measures had been taken, including the closing down of more than 5000 of them, as the report confirms. 37 In that context, the material cannot be characterised as "pivotal", and the failure to take the material in the report into account is not "so fundamental that it goes to jurisdiction". 38 Accordingly, the appeal should be dismissed with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.