NBKN v Minister for Immigration
[2007] FMCA 1473
•13 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBKN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1473 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of the People's Republic of China claiming fear of persecution for reasons of his political opinion – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.422B, 424, 424A, 441A, 474(2) |
| Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292 Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCR 214 SDCIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 62 SZIRO v Minister for Immigration & Citizenship [2007] FCA 260 VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459 |
| Applicant: | NBKN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 931 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 August 2007 |
| Date of Last Submission: | 1 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 August 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Ms B.K Nolan |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $5,000.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 931 of 2007
| NBKN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for a review of a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 6th February 2007 and handed down on 1st March 2007. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection (Class AZ) visa. The applicant has commenced proceedings for judicial review of that decision. On 19th March 2007 he filed an application with an affidavit in support. He has since filed an amended application and a further affidavit on 22nd June 2007. The orders that he seeks are, first, that the decision of the Refugee Review Tribunal is invalid and contrary to law, second, that the Tribunal decision be set aside, third, that his application should be remitted to a differently constituted Tribunal for rehearing. In my view, there are difficulties with the third order that the applicant seeks. It is unlikely that the Federal Magistrates Court has the power to determine who should or who should not constitute the Refugee Review Tribunal for the purpose of a hearing. In my view, that is purely a task for the principal member. In any event, an order in the nature of mandamus, which is what this is, does not require the Tribunal to rehear an application but to determine it according to law.
The background to this matter is that the applicant is a citizen of the People's Republic of China. He arrived in Australia on 31st January 1990. He applied for a protection (Class AZ) visa on 19th July 1991.
A delegate of the Minister declined to grant the visa on 22nd August 1995, which is a most surprising delay of more than four years. In the meantime, the applicant left Australia on 11th September 1993. He did not return until 12th December 1995. He arrived in Australia on a Business (Class UC) Short Stay Subclass 456 visa on a passport which he claimed to have acquired after changing his date of birth.
The applicant was not notified of the decision to refuse his application for protection visa until 23rd October 2006. On 17th November 2006 he applied to the Refugee Review Tribunal for review of the delegate's decision. The Tribunal invited the applicant to attend a hearing. At the request of the applicant's migration agent, the hearing was postponed.
A further hearing date was set on 10th January 2007.
The applicant attended the hearing and gave evidence and the Tribunal asked him a number of questions. The following day, 11th January 2007, the Tribunal wrote to the applicant by means of a letter intended to comply with the provisions of s.424A of the Migration Act 1958 (Cth) (“the Act”). The letter was headed "Invitation to comment on information", and told the applicant that the Tribunal had before it information, some of which was discussed at the Tribunal hearing the day before, that would, subject to any comments the applicant made, be the reason or part of the reason for deciding that he was not entitled to a protection visa. There followed a number of pieces of information which can be seen at pages 208 through to 211 of the Court Book.
The letter set out why the information was considered to be relevant and also finished with the statement, "All of the above information may cast doubt on your credibility". The applicant was invited to comment on the information in writing by 25th January 2007. The applicant, through his migration agent, provided written comments on
23rd January 2007. A copy of the letter containing the applicant's comments can be found at pages 212 to 217 of the Court Book.
The Tribunal handed down its decision on 1st March 2007. A copy of the Tribunal record can be found at pages 226 through to 251 of the Court Book.
The applicant seeks judicial review of that decision. In his amended application, he claims that there were errors of law in the Tribunal's decision constituting jurisdictional errors. He claimed that, first; the Tribunal's decision was in breach of s.424 of the Act. Secondly, he claimed that the Tribunal decision was in breach of ss.424A and 441A of the Act. He also claimed that the Tribunal's decision was in breach of s.422B of the Act and the principle of natural justice, and he summarised that by saying that there were procedural errors in the Tribunal decision constituting an absence of natural justice.
In an outline of submissions filed on 17th July 2007, which was similar in many respects to his amended application, the applicant expanded on his claim that the Tribunal decision was in breach of s.424 of the Act. He pointed out that s.424 of the act expressly empowers the Tribunal in its conduct of a review to get any information that it considers relevant. He referred to the Tribunal's statement in the decision that the Tribunal did not have before it the applicant's primary application or the department's refusal decision, but it has found references that confirm its existence and give some insight as to the claims contained in it.
(See Court Book page 229)
The applicant claims that the Tribunal failed to exercise its power to get his primary application and the department's refusal decision because they were relevant to his review application to the Refugee Review Tribunal. He said that the Tribunal has power to request those files or information from the Department of Immigration, but the Tribunal failed to exercise its power. He said that his primary application and the department's refusal decision were important to his review application, as in the primary application he clearly expressed his real fear of persecution if he went back to China and detailed information about his experience in China.
The applicant claimed also that the decision was in breach of s.424A and s.441A of the Act. The applicant claimed that at pages 7 and 8 of what he called the RRT refusal decision, the decision record, which are at pages 232 and 233 of the Court Book, the Tribunal used particulars of his personal invitation that the Tribunal considered would be the reason or part of the reason for affirming the decision that is under review. He said:
But RRT failed to give me an opportunity to understand the relevance of those information to my review. RRT also failed to give an opportunity to make a comment on those information. Tribunal failed to give me those important information completely and clearly before the hearing, which had been used as the reason or part of the reason for affirming the decision that is under review by one of the others specified in s.441A of the act. The Tribunal failed to ensure me to well understand why the information is relevant to my review. It is because of the reason mentioned above that it is impossible for me to have a fair chance to comment on the above information before hearing in writing or during the hearing verbally.
The applicant further claimed that the Tribunal decision was in breach of s.422B of the Act and the principle of natural justice. The applicant said that in the 17th page of the decision record at page 242 of the Court Book the Tribunal said:
The Tribunal has had regard to all the material before it, including the applicant's oral and written evidence, supporting documents and relevant country information. The Tribunal does not have before it the actual primary application 1991 or the delegate's decision 1995, a fact to which the applicant was alerted at hearing.
The applicant said:
This paragraph reveals that RRT failed to exercise its power under s.424 to get my primary application and the delegate's in reaching its conclusion. This is in breach of s. 422B of the Act and the principle of natural justice.
Finally the applicant claimed that his original visa application was lodged on 19th July 1991. "Four years later on 22nd August 1995, according to the department's record, the department made the decision to refuse my applicant. However, I hadn't been informed by the decision of the department at that time". He claimed that the department breached the Migration Act and failed to possible the important information on to him. He was given registered mail dated 23rd October 2006, which was 11 years after the decision was made by the department to lodge the review application to the Tribunal.
He claims that he believes the department breached the legal procedures on processing his application.
The applicant told the Court that he had received an outline of submissions from the lawyers for the Minister and some things in the submission were unfair to him and biased. I did point out to the applicant that the lawyers for the Minister were not, in fact, appearing for him but were arguing the Minister's case. The applicant continued to conduct an examination of the Minister's submission. I am not, of course, conducting a review of some submissions into the Minister's lawyers but into a decision of the Refugee Review Tribunal.
The applicant took exception to the authorities referred to in the Minister's submissions, claiming that it was not necessarily likely that they related to his case. I pointed out to the applicant that those authorities were cited on points of law rather than on points of fact. The applicant took exception to what he said was the Tribunal's statement that he had no fear of returning to China, although, in my view, that was a challenge to the Tribunal's factual findings, and the Court is not in a position to conduct merits review. The applicant also referred to how his wife had been dismissed from his employment as an example of how his family members were affected by his actions, but that, again, is just an invitation to the Court to conduct merits review.
The applicant took exception to some of the questions that were asked of him by the Tribunal member, saying that they were indications that the Tribunal member was not familiar with his case. He referred to discrepancies about airline flights, but, again, this is a matter of merits review into which the Court does not intrude.
The Tribunal accepted that the applicant had the nationality of the People's Republic of China and assessed his claims against that country. Unfortunately for the applicant, the Tribunal found him to be a witness of low credibility and said:
Although he asserted his refugee claims with vigour, he was generally unforthcoming and evasive on any matters that did not directly serve to advance his case. This was particularly marked in relation to the applicant's and his family's employment and financial circumstances from 1990 to the present and his travel documentation. The applicant gave hesitant and sometimes internally inconsistent information on these matters.
The Tribunal is of the opinion that the applicant has provided only an incomplete and unreliable account of his personal circumstances.[1]
[1] See Court Book at page 242
The Tribunal noted that both orally and in his written response to the Tribunal's s.424A letter that the applicant referred to his having received poor service from Mr Jack Meng who was, at the time, a migration agent and a migration agent who had prepared the applicant's son’s visa application in 2003. The Tribunal noted that the applicant relied on those matters to explain the incorrect information given on this son's application for a visa and argued that no adverse conclusion should be drawn from other acts, omissions or assertions that he claim arose from poor advice or sloppy work on the part of Mr Meng.
The Tribunal did not accept that the applicant had a dissident profile at the of his first departure from China in 1990 or that he suffered any of the alleged consequences that he claimed, such as detention, dismissal, unemployment and monitoring by the neighbourhood committee.
The Tribunal noted that after losing his Chinese passport the applicant was given a replacement passport in May 1990, which was compelling evidence that he did not fear persecution for himself or his remaining family in China at the time and that the PRC authorities did not view him as a dissident.
The Tribunal also referred to the fact that the applicant returned to China in 1993, saying:
The applicant's return to China in 1993 is inconsistent with the conduct of a genuine refugee. Undisputed is that he did so voluntarily and that he did so for family reasons. The applicant confirmed this in his letter of 29 January 2006. The exact reasons for the applicant's return are unclear, but they merit some consideration, because the applicant, in effect, invites the Tribunal to find that his mother's illness and death amounted to a compelling circumstance and the this return to China to see her again should not be interpreted as being inconsistent with the existence of a genuine and well‑founded fear of persecution.[2]
[2] Court Book at 244
The Tribunal was not satisfied that the applicant had made out his case and commented that his willingness to approach the Chinese authorities and be granted a replacement passport indicated that he was not of adverse interest to them. The Tribunal said that it considered his claims individually and cumulatively and found him not to be a witness of truth. The Tribunal was not satisfied that the applicant had a well‑founded fear of persecution for one or more of the Convention reasons and affirmed the decision not to grant the applicant a protection (Class XA) visa.
Turning now to the applicant's claims in the light of that decision, in my view, the ground alleging a breach of s.424 of the Act is misconceived. The applicant claimed that the Tribunal failed to exercise its power to obtain his primary application and the department's refusal decision. He said that they were relevant to his review application to the Refugee Review Tribunal. The fact that the information is not available does not constitute a jurisdictional error.
It is well established that s.424 of the Act is a discretionary section.
In fact, it was also submitted that s.424 does not impose upon the Tribunal a duty to investigate the applicant's claims.
(See SZIRO v Minister for Immigration & Citizenship [2007] FCA 260 12, VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459 at [27])
The applicant also claimed that his primary application and the department's refusal decision were important. However, it is difficult to see how important an application would be that was made in 1991 in respect of a review that took place in 2007. In any event, however, there was no obligation on the Tribunal under s.424 to investigate the applicant's case for him. That ground must fail.
As to the applicant's claim of a breach of s.424A of the Act in respect of material set out at pages 7 and 8 of the Tribunal decision, which appear at pages 232 and 233 of the Court Book, the applicant's claim cannot stand in the light of the fact that the Tribunal did write to the applicant setting out that information, explaining why it was relevant and seeking his comments. The Tribunal, as I indicated earlier, wrote to the applicant on 11th January 2007, and that letter, under the provisions of s.424A, appears in full at pages 208 to 211 of the Court Book. The applicant, far from being denied the opportunity to comment did comment through his migration agent. His comments appear in the Court Book at pages 212 through to 217. There is no breach of s.424A of the Act.
The applicant's claim of a breach of s.422B of the Act is misconceived. In fact, it is a reference back to the applicant's claim that the Tribunal failed to obtain his original primary application, which he claims to be a breach of s.424. It is well established that since s.422B of the Migration Act came into operation that natural justice at common law, other than in respect of bias, does not apply. Section 422B of the Act says:
(1) This subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 416, 437 and 438 in Div.7A insofar as they relate to this division are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
There is no scope for the survival of common law natural justice
(see Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] 151 FCR 214 [66] to [67]; see also SDCIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 62 [7] to [8])
The applicant also made a claim of a breach of the Migration Act in that he was renotified on 23rd October 2006. Whilst the Court may be critical of the extraordinary delays on the part of the department, it is clear that the renotification took place as a result of the Minister's department deciding that the applicant had not been originally notified correctly and renotified the applicant in order to comply with the decision in Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292.
There is no denial of natural justice. There is no breach of s.424 or s.424A or s.441A or s.422B. I am not satisfied that there is any breach of s.425 of the Act. The applicant was invited to a hearing. The issues were clearly put to him. The Tribunal then wrote a letter in detail under the provisions of s.424A, and the applicant replied in detail in writing. There is no jurisdictional error.
The decision is a privative clause decision as defined by s.474(2) of the Act. Privative clause decisions are final and conclusive and are not subject to declaration or orders in the nature of certiorari or mandamus. The application will be dismissed.
There is an application for costs on behalf of the first respondent minister. Costs
follow the event. I see no reason to depart from that. The amount of $5,000.00 is sought, which is the amount allowed by the Rules. The applicant has said that it would be really hard for him to meet that amount for financial reasons. I see no reason to doubt that.
I will allow six months to pay.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 22 August 2007
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