FEDERAL COURT OF AUSTRALIA

SZTHU v Minister for Immigration and Border Protection [2016] FCA 219

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed

2.    The appellants pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    This is an appeal from the decision of the Federal Circuit Court refusing the appellants’ claims for constitutional writ relief against a decision of the Refugee Review Tribunal given on 12 August 2014 (the second Tribunal) that affirmed the Minister’s delegate’s decision not to grant protection visas to the appellants: SZTHU v Minister for Immigration [2015] FCCA 2925.

Background

2    The appellants are husband and wife who are citizens of the People’s Republic of China. They arrived in Australia in early January 2012 and applied for protection visas on 27 January 2012. The delegate refused to grant the visas on 16 May 2012 after the appellants had failed to attend an interview.

3    The appellants applied to the Tribunal for a review of that decision. The Tribunal affirmed the delegate’s decision on 26 August 2013, but its decision was set aside by the Federal Circuit Court by consent. That was because the adverse information, to which I shall shortly refer, concerning internet searches relating to the appellants’ claims to have been proprietors of a hotel that the Tribunal (the first Tribunal) had conducted itself, had not been put to the appellants with a sufficient opportunity to seek additional time in which to respond to that information in accordance with s 424AA(b)(iii) of the Migration Act 1958 (Cth).

4    On 14 April 2014, the Tribunal wrote to the appellants, advising them that the matter had been remitted to it from the Federal Circuit Court. Subsequently, on 8 July 2014, the Tribunal invited the appellants to appear before it at a hearing on 6 August 2014. The invitation included a two-page response to hearing invitation. On 13 July 2014, the appellants completed that response to the hearing invitation, indicating that each of them would take part in the hearing, and responded to the form’s inquiry, pursuant to s 426(2) of the Act, that they did not wish it to take oral evidence from any other person.

The proceedings in the Tribunal

5    The second Tribunal recorded that it had considered the first Tribunal’s reasons and appended those in full as an attachment to its reasons. It put the same adverse information to the appellants as had been put to them by the first Tribunal and asked whether the husband needed further time to respond. When he said he did, the Tribunal asked him why he needed more time to respond, given the substantial period of time between the remittal from the Federal Circuit Court and the nature of the issues which had caused that remittal. Those issues involved the first Tribunal putting to the appellants information about a number of internet searches that it said it had made of various names and addresses given in information the appellants had supplied, in support of their application, relating to the name and address of the hotel that they claimed to have run in China.

6    In essence, the appellants claimed that they feared harm in China from the Chinese authorities and the general manager of a corporate property developer who, the appellants claimed, had a criminal history involving fraud. The appellants based those claims on the assertion that they owned a hotel business with a particular name in a particular street in their home city. They claimed that the husband had been called into the local government’s offices to meet the chief official who told the husband that his hotel was to be relocated so as to create opportunities for businessmen from other areas and that he was to be compensated and allocated a replacement block of land on which he could build a new hotel, to be built by the general manager’s company.

7    The husband claimed that on the next day he met the general manager who said that the husband would be paid compensation above the hotel’s market value, but as the city government did not have funds to pay, the developer would pay the compensation. However, the general manager asserted that, so the appellants claimed, his company had only enough to pay an initial 25% of the compensation at the higher rate and would pay the rest after it had received a loan. The appellants claimed that the husband discussed this with his wife and a family member who raised suspicions about the general manager’s integrity, asserting that he had been involved in defrauding other people and that his status and connections were such that no officials in the city would be willing to offend him.

8    The husband claimed that the next day he returned to the general manager’s office to say that he would agree to the relocation of the hotel to support the government but only if he received compensation in one lump sum for the full amount. He said that he then left without signing any agreement. The husband claimed that the following day the general manager sent two men to drive him to another meeting with the general manager. The husband claimed that at this meeting the general manager said that the appellants’ refusal to agree to his terms would only delay the project and inquired of the husband whether he had thought through the serious consequences of not co-operating with the government. The husband claimed that he again told the general manager that he would only agree to relocating if the compensation were paid in full. The husband claimed that the two men then drove him home and told him that the general manager was ruthless and that they were hit men from out of town. He claimed that the two men recommended that the husband take what was offered rather than getting nothing or, worse, being in a situation that might ruin his family. He claimed that they told him that they were on the general manager’s payroll and that, although they did not have to tell him this, they were doing so because he seemed to be a nice person and that it was up to him as to whether he should heed the warning. The appellants claimed that, after discussions with family members, that they received advice to hide or seek asylum overseas because, not having signed the agreement to relocate and receive the compensation offered, the appellants feared that they might be in danger.

9    During the first Tribunal hearing, the first member confronted the husband with what he said were internet searches that the Tribunal had undertaken itself of various Chinese websites that indicated no hotel existed that had any of the various names of hotels, streets or addresses on documents provided by the appellants in support of their application for protection visas. However, as I have noted, in putting these matters to the appellants, the first Tribunal member failed to comply with s 424AA of the Act.

10    The first member came to the conclusion that the appellants’ claims were not credible. He found that they did not own any hotel business as claimed and that there was no such hotel or business located at any of the addresses that the appellants’ documents indicated. The first member also found that country information suggested that there was a high degree of prevalence of fraudulent documents in China. He found that the husband was not a credible witness and that he had fabricated his account of all of the meetings with the city official, the general manager, his associates and the discussions with his family members. On that basis, the first Tribunal found that the appellants and their family had faced no serious harm in the past and were not entitled to a protection visa either on the basis of any claim under the Refugees Convention or to complementary protection under s 36(2)(a) and (aa) of the Act.

11    As I have noted, the second Tribunal member put to the husband the same information as to the inconsistencies between the claimed names of the hotels and addresses in the documents that the appellants had submitted in support of their claims to protection and the internet search results which the first member had obtained.

12    After the second Tribunal inquired why the husband would need more time to respond to that material, he said that the Tribunal could call a telephone inquiry number for the Industrial and Commercial Bureau of his city and confirm the details of his hotel. The Tribunal responded that the hotel details that he had provided previously had all been investigated and that none of those could be confirmed. The Tribunal invited the husband to indicate why it should undertake further investigation of the same details. He then responded that there were “barcodes” and that the Tribunal could check those with the Bureau when it made its inquiry. The Tribunal responded that there were no barcodes on any of the material that the appellants had provided and that the husband had said he needed more time to obtain those barcode details.

13    The Tribunal referred to the history of the first Tribunal hearing, the order setting aside the previous decision, the remittal and the recent hearing invitation, and inquired why the appellants had not taken any steps to obtain and provide to the Tribunal the barcodes on which the husband now sought to rely. The husband told the Tribunal that the person who had read the hearing invitation letter to him had not mentioned that producing the barcodes was necessary. But, the Tribunal pointed out, this was the second occasion on which the appellants had come before the Tribunal and they were on notice that the first Tribunal had found their documents were false. The husband then said that the recent death of his father had meant that he was not able to do anything in the proceeding for three to four months.

14    The second Tribunal told the husband that it had serious concerns about whether his claims were true and that it did not propose to make any further investigations into a booklet containing what he claimed was the original hotel registration that he had provided recently, because it contained the same information as that investigated by the first Tribunal and the husband had not provided any reason why further inquiries would lead to a different result. The Tribunal also said that it declined to give the husband further time to obtain more information, because he had already had ample time and opportunity to do so, and his previous experience in the Tribunal would have been sufficient to impress on him that his credibility and the genuineness of the documents on which he wished to rely were very much in issue. The husband told the Tribunal that he had only heard about the barcodes in the previous two or three days from his son, but the Tribunal again said that it would not grant further time to deal with that matter.

15    The wife also gave evidence to the second Tribunal reiterating that the impugned documents were genuine and that the Tribunal had to telephone the Bureau inquiry number on which her husband had relied. The second member again discussed with the wife the genuineness of documents on which the appellants wished to rely.

16    Ultimately, the second Tribunal said that it came to the same conclusion on the appellants’ claims as its predecessor, for the same reasons and on the same evidence, together with another version of the business registration in the booklet that the appellants provided to the second Tribunal. It noted that the appellants had had another opportunity to respond to the credibility-based concerns on the adverse information unearthed by the first Tribunal, the inconsistencies in their claims and evidence, the previous use by them of false information for their visitor visa applications and the independent country information about the high prevalence in China of the use of fake or fraudulent documents.

17    The second Tribunal found that the appellants’ explanations were not sufficient to counter the very strong evidence indicating that their documents were fake or fraudulently obtained and their evidence had been fabricated. It concluded that it was satisfied that any further investigations by it, based as they would be on the same business details as had been investigated by the first Tribunal, would be futile and, therefore, it determined to decline to undertake those further investigations or inquiries. The Tribunal said that it was satisfied that the appellants had had sufficient time, adequate reminders and compelling notice of the need to obtain further corroborative information on which they could seek to rely, but had not done so. In those circumstances, it was not prepared to allow the appellants any further time to respond to any adverse information put to them pursuant to s 424AA at the second hearing.

18    Accordingly, the second Tribunal came to the same conclusion as the first member, namely that the appellants’ claims to fear harm were not genuine, the documents that they had produced were false or fake and that they had fabricated their protection claims in their entirety. It found that the appellants had not experienced past harm and that there was no basis to find that they faced any chance of any harm claimed in the future. It also found that there were no substantial grounds that the appellants would face a real risk of significant harm in the future for the purposes of s 36(2)(aa) of the Act. Accordingly, the second Tribunal affirmed the delegate’s decision that the appellants were not entitled to protection visas.

The proceedings before the trial judge

19    The appellants appeared in person before the trial judge. The grounds for review before his Honour were that the Tribunal had committed a jurisdictional error in failing to comply with s 424A (sic) on the basis that, first, it did not specify any clear particulars of information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review in the invitation to the second hearing and, secondly, that the Tribunal had not acted in accordance with fairness and justice because it did not make a favourable finding in their favour or give the appellants extra time to obtain critical documents that would come from overseas to support the genuineness of their claims.

20    His Honour rejected both of those grounds. He found, correctly in my opinion, that s 425 of the Act did not require the invitation to a hearing to set out the material that ss 424A or 424AA dealt with. He also found that in any event, at the second Tribunal hearing the member complied with the obligations imposed by s 424AA in accordance with law and that it was reasonably open to her not to accept that the documents on which the appellants relied, including the new documents supplied at that hearing, were genuine for the reasons that she gave. His Honour also found that the second Tribunal was entitled to exercise its discretion not to grant the appellants further time in which to gather evidence and material in support of their claims.

21    The trial judge also explained why he had rejected the husband’s attempt to tender photographs of the hotel that the appellants alleged they operated during the course of the hearing before his Honour. The husband gave evidence that he had given the photographs to a migration agent who had subsequently told the husband that he should submit the photographs to the Tribunal. The husband’s evidence before his Honour was that he had done so at a building near St James Railway Station, rather than the registry of the Tribunal, which was some distance away at 83 Clarence Street, Sydney. His Honour found that, even if he could accept the husband’s evidence, he would not have been satisfied that the husband had submitted the photographs or a copy of them to the second Tribunal. Rather, he found, that at its highest, the new evidence only indicated that the appellants had left the documents at another place. For those reasons, his Honour rejected the application to adduce evidence as to the photographs.

22    During the course of the hearing today the husband, who appeared alone with the assistance of an interpreter, said to me that the building near St James Railway Station to which he had referred was, in fact, the Law Courts Building in which this Court is situated. However, that may be, it is not the Registry of the Tribunal and there is no suggestion that lodging documents here would have come to the Tribunal’s attention.

This appeal

23    The grounds of appeal from his Honour’s decision are as follows:

1.    The second Tribunal member said: “the applicants provided false or fraudulently obtained documents to support their claims”. (No. 14 of REASONS OF JUDGMENTT). In fact our supporting documents are issued by our local INDUSTRIAL & COMMERCIAL BUREAU which are originals and completely true. We provided the website of our local INDUSTRIAL & COMMERCIAL BUREAU for the Tribunal member to investigate. But he didn’t do it and regardless of our true supporting documents.

2.    The Tribunal member had bias against us and failed to take our supporting documents into account according to S91R of the Migration Act 1958, making jurisdictional error.

3.    Unfortunately the Federal Circuit Court still affirmed the Tribunal decision.

The appellant’s arguments.

24    At the commencement of the hearing today, the husband told me that he had an Australian citizen witness whom he wished to call to prove that the hotel was real. He said that the witness would give evidence that he had, in fact, stayed at the appellants’ hotel and that it was located at the place at which they claimed it to exist. I rejected the attempt to lead that evidence on the basis that the appellants had not complied with the requirements for the tendering of fresh evidence on appeal and that the evidence in essence went to the merits of the Tribunal’s decision and not to the question of whether the Tribunal had arrived at its decision in accordance with the law.

25    The husband argued that he was not thinking properly when appearing before the second Tribunal because his father had just passed away and he had difficulties dealing with the proceedings because he did not speak English or have a migration agent. He said that the second Tribunal had ignored the evidence that he wished to call about barcodes and had not acted on his request that it phone the Bureau in China to investigate the existence of the hotel business. He said that the Tribunal should have checked the internet locations which he wished it to look at and that he was not familiar with the internet but that his new witness would say that the hotel in fact existed. He said that he did not know how to get the information that the Tribunal would need but he had provided the Tribunal with what he wished it to investigate and that if the appeal were allowed, and the matter remitted to the Tribunal, he could then call his new witness.

Consideration

26    The duty imposed on the Tribunal by the Act was to review the Minister’s delegate’s decision. In Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1129 [25]-[27], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ discussed the extent to which the Tribunal was obliged to undertake inquiries. Their Honours said that it may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by way of a constructive failure to exercise jurisdiction. However, in the circumstances of that case their Honours held that it was not necessary to explore that matter further because there had been nothing in the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates that it had questioned, could have yielded a useful result. They noted that an inquiry to make telephone contact with persons whose mobile phone numbers had been shown in the certificates that the Tribunal there had not accepted as genuine would not have assisted in determining whether the certificates were, in fact, genuine. That was because, first, if the persons answering the calls had admitted to the Tribunal or its officers that documents were not genuine, that would not have assisted the applicant for review, and, secondly, if the contrary had been said, that information would not have conveyed any material in addition to what the challenged certificates stated. Their Honours added that the invitation under s 425 of the Act in that case had given a sufficient opportunity to the applicant for review and no further opportunity was necessary.

27    Here, the second Tribunal invited the appellants to the further hearing under s 425 by its letter of 8 July 2014. As the Tribunal found, the appellants were by then on notice of the adverse information concerning the results of the first Tribunal’s internet searches and the necessity for them to deal with the issues that the first Tribunal’s decision had raised as to the genuineness of their claims. They were also on notice, from the detailed reasons of the first Tribunal, of inconsistencies and other problems in the documents that the appellants had presented and the potential for those matters to be used to affirm the decision under view.

28    There was no material in the appeal papers or before the trial judge to indicate that the Tribunal had not, on either the first or second hearing, accurately conveyed the results of the internet searches that it said it had conducted.

29    The first ground of appeal, in effect, seeks to impose on the Tribunal an obligation to investigate on the internet what the Industrial and Commercial Bureau website might have yielded. I am of opinion that the Tribunal did not make a jurisdictional error in the circumstances of this case in failing to take up the appellants’ invitations to it at the second hearing to conduct those investigations: SZIAI 83 ALJR at 1129 [25]-[27]. The Tribunal had a discretion whether or not it would conduct such an investigation, but no obligation to do so. The second Tribunal did turn its mind to whether it would follow up that website inquiry together with the telephone call which the appellants invited it to make to the Bureau but it declined to do so. That occurred in the context where the appellants had done nothing in the period between the first hearing that had occurred, before they received the decision of the first Tribunal, and the hearing in the second Tribunal, to obtain that information and put before the Tribunal any material that inquiries of the Bureau might have yielded in support of their claims when they knew the importance of such material. There is nothing before me, or before either the second Tribunal or his Honour, to suggest that those inquiries would have yielded a result that supported the appellants’ case. In my opinion, there is no substance in the first ground of appeal, and it fails.

30    The second ground of appeal was not put before the primary judge. It alleged that the Tribunal member was biased and failed to take the supporting documents into account for the purposes of s 91R of the Act. However, s 91R of the Act does not deal with taking into account documents as to whether a hotel exists or where it is located. Rather, before its repeal in April 2015, s 91R dealt with the requirement that the character of the persecutory conduct alleged meet certain factual thresholds before a finding can be made that any conduct complained of can amount to persecution for the purposes of the Refugees Convention. The appellants did not put any argument to me as to why the second Tribunal was, or might have given the appearance of being, biased. A new ground of appeal that has not been the subject of argument below and that raises a substantial new issue, ordinarily, will not be allowed to be advanced. Trials are not dress rehearsals for appeals: Coulton v Holcombe (1986) 162 CLR 1 at 7-8, per Gibbs CJ, Wilson, Brennan and Dawson JJ.

31    There is no basis in the material before me to suggest that the conduct of the second Tribunal gave rise to any apprehension of bias, let alone actual bias. The mere fact that a party fails before a decision-maker, who must form a view one way or the other on an application, does not mean that, in arriving at the decision, the decision-maker was biased or acted in a way which might suggest to a reasonable lay observer that he or she might be biased. For these reasons, the second ground has no substance, and in any event, I would not have allowed it to be raised.

32    The last ground is simply an expression of disappointment with the decision below and, like the oral argument of the husband, is not a ground of appeal that could succeed.

Conclusion

33    For these reasons, I am of opinion that the appeal fails and should be dismissed with costs.

Associate:

Dated:    8 March 2016