BRGAO of 2008 v Minister for Immigration
[2008] FMCA 1574
•21 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BRGAO OF 2008 v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1574 |
| MIGRATION – Challenge to decision of Refugee Review tribunal – allegation that irrelevant consideration taken into account and failure to afford procedural fairness – delay in applying for protection visa – application dismissed. |
| Migration Act 1958 (Cth), ss.5, 36, 47, 65, 359A, 422B, 424A |
| Yong v MIMA (2000) 62 ALD 687 Kopalapillai v Minister (1998) 86 FCR 547 Craig v The State of South Australia (1995) 184 CLR 163 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Abebe v Commonwealth of Australia (1998) 197 CLR 510 Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59 Minister for Immigration v Eshetu [1999] HCA 21 Buck v Bavone (1976) 135 CLR 110 Applicant S276/2002 v Minister for Immigration [2004] FCA 330 Selvaddurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 SZIHC v Minister for Immigration & Anor [2007] FMCA 709 Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288 |
| Applicant: | BRGAO OF 2008 |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 494 of 2008 |
| Judgment of: | Wilson FM |
| Hearing date: | 14 November 2008 |
| Date of Last Submission: | 14 November 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 21 November 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Nguyen |
| Solicitors for the Applicant: | Southside Lawyers |
| Counsel for the first Respondent: | N/A |
| Solicitors for the first Respondent: | Clayton Utz |
| Counsel for the second Respondent: | N/A |
| Solicitors for the second Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is ordered to pay the respondents’ costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 494 of 2008
| BRGAO OF 2008 |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of the People’s Republic of China. He applies to review a decision of the Refugee Review Tribunal, signed 24 June 2008 and handed down on 3 July 2008, to affirm a decision of the Minister’s delegate who refused to grant the applicant a protection visa. The Tribunal’s decision was sent to the applicant’s representative and was received by the applicant on 10 July 2008.
By his application filed 25 July 2008 the applicant relied upon three grounds to challenge the decision of the Tribunal:
(1)The Refugee Review Tribunal (‘the Tribunal’) fell into jurisdictional error in that it denied procedural fairness to the applicant as well as acting in breach of its obligations under the law (in breach of section 359A of the Migration Act).
(a)The Tribunal did not provide the Applicant sufficient time to collect evidence after being advised that the Applicant was having difficulty in obtaining the documents, in order to provide to the Tribunal and proceeded with the decision without the evidence;
(2)The Tribunal fell into jurisdictional error in that it failed to take account of irrelevant material or considerations.
(a)The Tribunal took into account an irrelevant consideration. The Delegate concluded that the fact that the Applicant had not applied for a protection visa earlier was a strong indicator that there was no truth to the Applicant’s claims.
(3)The Tribunal breached s.425 of the Migration Act 1958 (Cth) by not providing to the Applicant adequate interpreting services and failed to afford the Applicant an effective opportunity to give evidence and present arguments.
(a)The Tribunal provided the Applicant with an interpreter that provided an inadequate standard of translation during the hearing. This deprived the Applicant a fair opportunity to comment and consequently have a favourable outcome in his favour.
In the applicant’s written submissions, filed 30 October 2008, and in supplementary written submissions filed on the same day, the applicant seeks to agitate three additional grounds:
(4)The Minister for Immigration and Citizenship (“the Minister”) fell into jurisdictional error in that it had taken into account of irrelevant material or considerations.
(a)The Tribunal took into account an irrelevant consideration and concluded the fact that the Applicant had legally obtained a passport in his own name and left China without difficulties, amounted to no real fear of persecution.
(5)The Minister fell into jurisdictional error in that it misapplied the law and asked itself the wrong question.
(a)Whether the fear of Convention-based persecution was well founded, the manner of the Applicant’s departure from the PRC was one of two considerations in the delegate’s reasoning and assessment that the Applicant’s fear was not well founded. An applicant’s claims are to be assessed at the time the protection visa is made, not at the time the Applicant left the country.
(6)The Minister breached procedural fairness in that there was reasonable apprehension that the Delegate decision maker was impartial and unprejudiced when assessing the Applicant’s situation.
(a)The Delegate concluded that because the Application has had various applications before the Department and pursued litigation through the courts, indicated that the Applicant is familiar with Australia’s legal system and immigration provisions. The Delegate also indicated that the Applicant only claims to be a refugee as a last resort after exhausting all avenues of appeal.
Counsel for the applicant accepted that this Court could not review the decision of the Minister’s delegate. The applicant’s additional ground was refined to be that the Tribunal fell into jurisdictional error by adopting the decision of the delegate, who had erred as identified in grounds 4, 5 and 6.
Counsel for the applicant conceded that he could point to no evidence to support a submission that the Tribunal, which conducted a de novo determination of the applicant’s claim, had abdicated its function and simply adopted the decision of the Minister’s delegate. Counsel for the applicant conceded that grounds 4, 5 and 6 could not be maintained, and they were abandoned. The reasons of the Tribunal reflect a detailed consideration of the applicant’s claims.
With respect to ground 3, counsel for the applicant conceded that there was no evidence to support this ground, because no transcript had been obtained of the hearings before the Tribunal, and there was no evidence of any inadequacy in translation at the hearings. The reasons of the Tribunal record that an interpreter in the Mandarin language was present at the hearing.
The applicant then sought an adjournment of the hearing so that a transcript could be obtained. No transcript had previously been requested, despite the matter having twice been before the Court for directions (on the first occasion the applicant and his representative failed to appear). For the reasons that I gave on the day of the hearing, the application for an adjournment was refused.
Section 36 Migration Act 1958 (“the Act”) provides for a class of visas known as protection visas. The Minister is required to consider an application for a protection visa under s.47 of the Act, and, if satisfied of various matters stipulated by s.65 of the Act, to grant such a visa. The nature of the power to be exercised pursuant to s.65 was explained by Goldberg J. in Yong v MIMA (2000) 62 ALD 687; [2000] FCA 1391.
A critical requirement to be satisfied on a successful application for a protection visa is that the applicant be a non-citizen of Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The applicant is a non-citizen, as that term is defined in s.5(1) of the Act. Reference to the Refugees Convention is to the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951. This was amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967, referred to as the Refugees Protocol. Article 1A(2) of the Refugees Convention defines a “refugee” as:
“any person who . . . owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”
To achieve a protection visa, the applicant had to satisfy the Minister that he was a refugee as defined. Put more correctly, a determination made pursuant to the Act and Regulations is a decision as to satisfaction that the criteria for the grant of a protection visa have been established (formerly a decision as to the status of the applicant as a refugee); it is not a raw determination of refugee status. Although a decision as to "satisfaction" is not immune from review, as the Full Court said in Kopalapillai v Minister (1998) 86 FCR 547:
"it is not to be overlooked that the criterion reflects a decision to make the satisfaction of an administrative decision maker, and not the satisfaction of a judge or a court, the determinant of eligibility for the grant of a protection visa."
In the present case, the Tribunal did not accept that the applicant satisfied the criteria for the grant of a protection visa. In so doing, the Tribunal carefully analysed the applicant’s evidence and made findings adverse to his credit.
It is trite to observe that this Court can only review decisions of the Tribunal if it can be demonstrated that the Tribunal member fell into jurisdictional error.
A general description of what constitutes jurisdictional error is to be found in the decision of Brennan, Toohey and McHugh JJ in Craig v The State of South Australia (1995) 184 CLR 163 at 179:
"If ... an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
See also Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
Merits review is not permissible: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. There is no error of law or jurisdictional error in the tribunal making a wrong finding of fact: Abebe v Commonwealth of Australia (1998) 197 CLR 510 at 560. Adverse credibility findings are properly the function of the decision-maker and generally not susceptible to judicial review by the court: Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67]. As Gleeson CJ pointed out in Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59 at 62 reviewable error is not established purely because, on the material before the decision maker, the court would have reached the required state of satisfaction.
In Minister for Immigration v Eshetu [1999] HCA 21 at [145] Gummow J, after referring to the judgment of Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-9 said that the power of review would be enlivened:
“where the satisfaction of the decision maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds”.
However it is not illogical simply because the applicant expresses emphatic disagreement with the reasoning. That is not a ground for review: Applicant S276/2002 v Minister for Immigration [2004] FCA 330 per Jacobsen J, at [43].
The applicant’s first ground relates to a failure to provide procedural fairness. Although the application refers to s.359A of the Act, the relevant section is s.424A. I accept the respondent’s submission that Division 4 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters being dealt with by the Tribunal: s.422B of the Act.
The applicant’s counsel submitted that the Tribunal should have convened another hearing at which the applicant could have provided the documents that he said would support his claim.
The applicant pointed to paragraphs [65] to [67] of the Tribunal’s reasons to highlight the importance and relevance of the documents he was trying to produce. It is worth reproducing those passages from the Tribunal’s reasons:
“65. On 6 June 2008 the Tribunal wrote to the applicant in accordance with subsection 424(2) of the Act inviting him to give additional information. The Tribunal noted, first, that in the statement which the applicant had submitted to the Tribunal by facsimile transmission on 20 May 2008 he had said that he attached photographs showing himself, his wife and ‘fellow student activists’ in Tiananmen Square. The Tribunal noted that these photographs had not been attached although, as noted above, the applicant had stated that the facsimile transmission consisted of nine pages in total and all nine pages had been received.
66. The Tribunal noted, secondly, that since the applicant’s application for review had been lodged on 19 March 2008 he had repeatedly referred to documents or other material from China which he proposed to submit to the Tribunal. He had given various excuses for his inability to do so and no such documents had ever been submitted. The Tribunal stated that it therefore invited the applicant to produce the photographs which he had claimed had been attached to the statement which he had submitted to the Tribunal by facsimile transmission on 20 May 2008 ant the documents or other material from China which he had repeatedly proposed to submit to the Tribunal.
67. The Tribunal stated that this additional information was to be received at the Tribunal by 20 June 2008. It noted that if the applicant could not provide the additional information by 20 June 2008 he could ask the Tribunal in writing for an extension of time in which to provide the additional information but that, if the Tribunal did not receive the additional information within the period allowed or as extended, it might make a decision on the review without taking any further action to obtain the additional information. At the time of writing the applicant had not provided the additional information to the Tribunal.”
This is to be taken against the background that:
a)in his application for a protection visa, submitted on 8 January 2008 the applicant twice stated “Detailed information will be provided soon” (Respondent’s Bundle of Relevant Documents page 106);
b)the Tribunal hearing was conducted on 7 May 2008, following which the applicant was afforded an opportunity to confer with his legal adviser. As a result the applicant submitted a statutory declaration;
c)in his statutory declaration sworn 19 May 2008, the applicant stated in the second paragraph:
“In my previous submission, I didn’t include detailed information, because the related material had to be brought out from China, where materials like this are currently still deemed illegal. On two occasions, i.e., during the June 4 Tiananmen incident and the subsequent June 21 “counter-revolutionary incident”, I was detained and put under investigation, first by a joint taskforce of the state security bureau and provincial public security bureau, and then by the local police. Although for a special reason I was later released and allowed to go home, all the written and graphic material I had collected during the events, except those confiscated by the police, were burnt by my aged parents. The only option left for me was to ask my wife, who is now in China, to secretly contact my old comrades who had been fighting side by side with me in Tiananmen Square, trying to retrieve some bits and pieces of the old record that had survived the years. It took her very long time to actually find the material – and that was why I couldn’t submit it to the DIAC within the required time limit. The following is a statement of the ordeal I have experienced, and the reason why I have applied for a protection visa.”
d)in its letter of 6 June 2008 the Tribunal asked of the applicant:
“I am writing about your application for review of the decision refusing to grant you a Protection (Class XA) visa.
You are invited to provide the following additional information. First, in the statement which you submitted to the Tribunal by facsimile transmission on 20 May 2008 you said that you attached photographs showing yourself, your wife and ‘fellow student activist’ in Tiananmen Square. The photographs were not attached although you stated that the facsimile transmission consisted of nine pages in total and all nine pages were received. Secondly, since your application for review was lodged on 19 March 2008 you have repeatedly referred to documents or other material from China which you proposed to submit to the Tribunal. You have given various excuses for your inability to do so and no such documents have ever been submitted. The Tribunal therefore invites you to produce the photographs which you claimed were attached to the statement which you submitted to the Tribunal by facsimile transmission on 20 May 2008 and the documents or other material from China which you have repeatedly proposed to submit to the Tribunal.
This additional information should be received at the tribunal by 20 June 2008. If the additional information is in a language other than English it must be accompanied by an English translation from an accredited translator.
If you cannot provide the additional information by 20 June 2008, you may ask the Tribunal in writing for an extension of time in which to provide the additional information. If you make such a request, it must be received by the Tribunal before 20 June 2008 and the request must state the reason why the extension of time is required. The Tribunal will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If the Tribunal does not receive the additional information within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain the additional information.
If you have any questions, please call me on the number listed below or call our national enquiry line – 1300 361 969. For assistance in another language, please call the Translating and Interpreting Service (TIS) on 131 450.”
e)the applicant did not provide any documents nor make any written request for an extension of time to do so;
f)on 23 June the applicant is recorded as ringing the Tribunal to advise of a change of address. The file note of this conversation (at page 32 of the respondent’s bundle) says:
“I said he must confirm it in writing which he said he will do when he sends in more information. . . “
No further documentation was provided by the applicant.
At paragraph 16 of its reasons the Tribunal specifically referred to the applicant’s answers to questions 41 to 45 on Part C of the application form.
At paragraph 17 of the reasons the Tribunal said:
“In a letter accompanying his application for review the applicant said that it was very hard for him to collect evidence to support his application because he had been taken by Chinese policemen twice and they had searched his house and had taken all the pictures and documents. He said that one of his friends who had taken lots of pictures in Tiananmen Square in 1989 was trying to send these to him secretly.”
At paragraph 18 of the reasons the Tribunal said:
“At the hearing before me the applicant said that he had some written material which was with a translator but the translator’s computer had crashed. He said that the translator was in the process of translating the material again. He said that this was why his lawyer was not at the hearing. I noted that the Tribunal did not have any record that he had a representative . . . “
At paragraph 19 of the reasons the Tribunal said:
“. . . I noted that in his application the applicant had said that he would provide detailed information soon in relation to his claims but he had never provided that information. The applicant said that a lot of the material was with the translator but that after 1989 he had been held in custody for about two days so all the material had been destroyed now. He said that part of it had been destroyed by his parents and part of it had been taken by the police.”
In my view, the submission that the applicant has been denied procedural fairness must be rejected. He was given a number of opportunities to provide any documentation that he wished to submit for the Tribunal’s consideration. In its letter of 6 June 2008, the Tribunal expressly left it open for the applicant to seek further time. He did not do so. The reasons given by the applicant for not providing the documentation are themselves confusing and apparently inconsistent. In my view the first ground in the application for review is not made out.
As to the second ground, counsel for the applicant submitted that delay on the part of an applicant for a protection visa is not a relevant consideration for the Tribunal to assess the applicant’s credit. That submission is directly contrary to authority.
In Kopalapillai v Minister for Immigration (1998) 86 FCR 547 at 558 – 9 the Full Federal Court said:
“Whilst a decision maker concerned to evaluate the credibility of the testimony of a person who claims to be a refugee in Australia will need to consider, and in many cases consider sympathetically, possible explanations for any delay in the making of claims, and for any evidentiary inconsistencies, there is not a rule that a decision maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for the delay or inconsistency (Taylor, “Informational Deficiencies Affecting Refugee Status Determinations”). Nor is there a rule that a decision maker must hold a “positive state of disbelief” before making an adverse credibility assessment in a refugee case. The reference by Foster J, sitting as a member of the Full Federal Court in Guo’s case at 191, to a requirement for a “positive state of disbelief” was not directed to this issue of the determination of credibility, but rather to the question of when an adverse credibility finding will logically found a positive finding that a particular fact asserted by the witness does not exist.”
In Selvaddurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 349 Heerey J said:
“The applicant complained of the Tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution. It is a rational consideration open on the material.”
In SZIHC v Minister for Immigration & Anor [2007] FMCA 709 at [30] Turner FM said:
“…
The relevance of the decision in Selvadurai is that where there is a long delay between arriving in Australia and applying for a protection visa, the delay is a relevant issue in deciding genuiness. The issue of whether or not the initial visa is still valid when the application for a protection visa is lodged is of little relevance. Even without the decision in Selvadurai the Court would hold that it was open to the Tribunal to consider the 18 month delay in seeking a protection visa to be a relevant matter. The Court finds that the delay of 18 months was not an irrelevant consideration.”
I reject the submission that delay in making a claim for a protection visa is not a relevant consideration in assessing the applicant’s credibility.
The Tribunal in its reasons stated by reference to Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288 that the time at which the definition of refugee must be satisfied is the date of the decision on the application.
At paragraph 39 of its reasons the Tribunal records that it was put to the applicant that his delay in applying for a protection visa was relevant to the review because it cast doubt on whether his claimed fear of being persecuted if he returned to China was genuine. The Tribunal continued:
“Moreover in his original application he had said that he would provide detailed information soon but he had not done so and most of what he had said at the hearing before me was information which he had not mentioned earlier to the Department or the Tribunal. I noted that unlike most applicants for refugee status he had English – he had been studying in Australia – so it would not have presented any difficulty for him to have made these claims at an earlier time if they were true. I put to the applicant that I might conclude both because of his delay in making his application and because of the lack of detail in his application that there was in fact no truth to his claims.”
At paragraph 76 of its reasons the tribunal said:
“Having regard to the applicant’s delay in applying for a protection visa and the lack of detail in his original application I conclude that there is fact no truth to his claims.”
If delay is a relevant consideration, as the authorities demonstrate that it is, then the conclusion of the Tribunal is an adverse determination of the applicant’s credibility. That is not jurisdictional error.
On the applicant’s own case he had a well grounded fear of persecution from 2002. In his counsel’s submissions at page 11 it was stated:
“As a result of arrests of political activists in China after the applicant’s [sic] since 2002, it is submitted that the applicant be likely subject to harassment or worse, arrest or detainment to be ‘re-educated’ if he were to return to China.”
At page 14 it was submitted:
“In 2002 the applicant discovered that the Chinese authorities had been informed that the applicant had put on a display to have the authorities believe that he no longer held socialist ideological views. It is submitted that there was a material and substantial change when the applicant was made aware by his former colleagues in China that he would be sought after by the Chinese authorities if he were to return to China, because of the discoveries made in 2002.”
As I have said, the application for a protection visa was not made until 8 January 2008. There was therefore delay that the Tribunal could have regard to in formulating its assessment of the credibility of the applicant’s claims.
The applicant has failed to demonstrate that the Tribunal fell into jurisdictional error.
The application must be dismissed. The applicant should be ordered to pay the respondents’ costs fixed, pursuant to Federal Magistrates Court Rule 44.15(1) and Item 1(c) of Schedule 1, in the sum of $5,000.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Wilson FM
Associate: Lynnette Chin
Date: 21 November 2008
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