NBLE v Minister for Immigration
[2006] FMCA 1667
•5 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBLE v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1667 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 422B, 424A, 483A Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), Sch.1, Item 7 |
| Applicant S76 of 2003 v Minister for Immigration [2004] FCA 1107 Yo Han Chung v University of Sydney & Ors [2002] FCA 186 Minister for Immigration v Lay Lat (2002) 151 FCR 214 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration v NAMW (2004) 140 FCR 572 NAAH v Minister for Immigration [2002] FCAFC 354 NARE v Minister for Immigration [2004] FCA 554 QAAC v Refugee Review Tribunal [2005] FCAFC 92 SAAP v Minister for Immigration [2005] HCA 24 SZDFO v Minister for Immigration [2004] FCA 1192 WAJW v Minister for Immigration [2004] FCAFC 330 |
| Applicant: | NBLE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1556 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 10 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Counsel for the Respondents: | Mr D Jordan |
| Solicitors for the Respondents: | Mr O Young of Blake Dawson Waldron |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application filed on 31 March 2005 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1556 of 2005
| NBLE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Court of Australia on 31 March 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 14 February 2005 and handed down on 9 March 2005, affirming a decision of the delegate of the first respondent made on 7 December 2004, refusing to grant the applicant a Protection (Class XA) visa. On 20 April 2005, Emmett J transferred the matter from the Federal Court to the Federal Magistrates Court. The applicant seeks unstated relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “NBLE”.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
Background
The Tribunal decision of Mr Rodney Inder, reference N04/50395, provides the following background information. The applicant, who claims to be a citizen of The People’s Republic of China (“the PRC”), arrived in Australia on 26 October 2004. On 24 November 2004, he lodged an application for a Protection (Class XA) visa with the Department of Immigration under the Act. On 7 December 2004, a delegate of the Minister refused to grant the applicant a protection visa and on 24 December 2004, the applicant applied to the Tribunal for review of the decision.(Court Book (“CB”) 54)
The applicant claims he arrived in Australia on a temporary business visa. He claims he is a Christian who because of his religious beliefs has been persecuted by the Chinese government. He claims that the Chinese authorities detained him for three days and that he cannot now return to the PRC. The applicant claims he was employed at Handan Steel Factory as a common worker from December 1983 until October 2004 when he left for Australia. Further that both his parents were Christians and he was influenced by them. He claims he grew up with his parents practicing their religion, even though this was prohibited by the Chinese government. He claims that he once went to a church controlled by the government and he was disappointed that the pastor stressed that believers must love their country, socialism and the Communist Party of China. He states that he never went back to that church again. He claims that while he was willing to obey the laws of the PRC, “church is church”, and he hated the government for “using the religion as a political tool”.(CB 57)
Tribunal’s Findings and Reasons
Mr Jordan, appearing for the respondents, provided a brief and convenient summary of the Tribunal’s findings, which I adopt for the purposes of this judgment. The Tribunal was not satisfied that the applicant was Christian. This finding was based upon his extremely limited knowledge and understanding of the Bible and Christianity, which was apparent from his oral evidence at the Tribunal hearing. The Tribunal also had regard to the absence of documents in support of his claims, such as letters or certificates from his church, friends or family, and his failure to regularly attend church in Australia.
The Tribunal member thought this would be expected if the applicant was committed to the practice of Christianity without interference from the PRC government. The Tribunal also referred to the applicant’s departure from the PRC using a passport issued in his name and, with reference to independent country information, found that that this indicated that he was of no interest to the PRC authorities.
Applicant for Review of the Tribunal’s Decision
On 15 July 2005, the applicant filed an amended application in accordance with the orders made by Emmett J on 20 April 2005.
The amended application contained the following grounds:
a. The Respondents denied the Applicant natural justice by not considering the context in which the Applicant will face persecution and serious harm for being a Christian member in China;
b. The Respondents have not considered the evidence which is in favor of Applicant. They have only considered the evidence which is not in favor of Applicant.
Particulars:
(i)The Tribunal cited a couple of Country Information, first information titled “Shouters in China” (CIS Source: DFAT, CIR No 194/01, 03/07/01); and second information titled “Departure Procedure” (China: Passport and Exit Permit Issuing Procedures: CIS Request CHN 17/02/98);
(ii) The Tribunal did not comply with its obligations under s424A of Migration Act 1958 (“The Act”) in respect of the above-mentioned information, particularly, the first County Information about employment status for application for a passport in China (Page 7 on “RRT Decision);
(iii)In addition, the second Country Information which Tribunal used to assess my application was obviously too old to regard as an evidence in decision making;
(iv)Applicant argues that the current real situation in China today is: a so-called Network (including families, relatives and friends) is still working very well. At least, the network is still able to help a PSB wanted people to obtain a passport traveling overseas, because it is a short-term action, which usually will not be found out by authorities.
(v)Although, a network may not be able to protect such a PSB wanted person or to ensure such a person’s safety and security in China;
(vi)In addition, Tribunal has apparently failed to give me these important information, completely and clearly, before or during the hearing, which have been used as the reason or part of the reason, for affirming the decision that is under review;
(vii)The Tribunal has, particularly failed to ensure me, during the hearing, to well understand why the information, normally called as “Independent Country Information” (ICI) is relevant to the review;
(viii)It is because of the reason mentioned above that it is impossible have a fair chance to comment on the ICI before or during or after the hearing;
(ix)I believe that the Tribunal should provide me a complete ICI or the particular information which would be the reason or a part of the reason, for affirming the decision that is under review, by one of the methods specified in s441A of the Act before the hearing, so that I could make any comments on the information before hearing in writing or during the hearing verbally;
(x) Also, Tribunal has obviously ignored the fact that it is almost impossible for the interpreter, at the hearing, to accurately and clearly translate relevant ICI or the information used by the Tribunal to assess my review application with special religious terms; it is definitely impossible for me to make a complete comment on such information without a full and good understanding;
(xi) There are procedural errors in Tribunal’s decision constituting an absence of natural justice;
(xii)In summary, the Tribunal failed to use correct and latest information to assess my review application in a correct and reasonable method.
I say that such denial of natural justice has seriously deprived me of my chance of success to be recognized as a refugee that Australia has a duty to protect.
Submissions
The applicant appeared self-represented with the assistance of a Mandarin interpreter. The applicant has availed himself of the opportunity to file an amended application giving complete particulars of each ground of review relied upon. He was also provided with the opportunity to file affidavit material containing additional evidence in support of his application, including a transcript of the Tribunal hearing. The applicant confirmed that he had not filed any such material nor had he filed written submissions or a list of authorities prior to the hearing. I am satisfied that the applicant has also availed himself of the opportunity to participate in the Court sponsored Panel Legal Advice Scheme and did attend a conference with a panel lawyer and received advice. When I invited the applicant to make oral submissions, he briefly stated that he was seeking judicial review of the Tribunal decision of 14 February 2005, which confirmed the rejection of his visa application.
Mr Jordan, appearing for the respondents, prepared written submissions in response to the applicant’s amended application.
Those submissions address the issues raised by the applicant, that he was denied natural justice and that the Tribunal only considered evidence not in his favour. Mr Jordan then addressed the twelve particulars in support of both grounds of review.
In respect of particulars (i), (ii), (vi) and (ix), the applicant contends that the Tribunal’s reference to country information constituted a failure to comply with s.424A(1) of the Act. Mr Jordan submits that this contention must be rejected because the country information falls within the exception in s.424A(3)(a): Minister for Immigration v NAMW (2004) 140 FCR 572 at [66] – [74], [125] – [138]; WAJW v Minister for Immigration [2004] FCAFC 330 at [43] – [46]; QAAC v Refugee Review Tribunal [2005] FCAFC 92 at [20] – [30].
Particulars (vii) and (viii) claim that the Tribunal failed to ensure that the applicant understood the relevance of the above mentioned country information during its hearing, which led to him not having a chance to comment on that information. This complaint does not identify a jurisdictional error. In relation to the disclosure of country information relied upon by the Tribunal, s.424A of the Act satisfies the natural justice hearing rule as pursuant to s.422B of the Act. Section 422B came into effect on 2 July 2002 and applies to applications for review lodged after that date pursuant to Schedule 1, Item 7 of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth).
The application for review in this matter was lodged with the Tribunal on 24 December 2004: see Minister for Immigration v Lay Lat (2002) 151 FCR 214 at [66] – [70]. Mr Jordan submits that the country information and its relevance were squarely raised by the Tribunal during its hearing: CB 59.
Particulars (iii) and (xii) assert that the country information was too old to be relied upon by the Tribunal and therefore out of date. Mr Jordan submits that this assertion cannot be sustained because there is no evidence to suggest a change in circumstances in the PRC which affects the relevance of the information. Moreover, a failure to find and obtain the most up to date factual information available does not constitute jurisdictional error. Justice Bennett in Applicant S76 of 2003 v Minister for Immigration [2004] FCA 1107 at [28] said:
In any event, as counsel for the first respondent contended, a failure to search for and obtain the most up-to-date factual information available does not constitute jurisdictional error in the context of the Migration Act 1958 (Cth). The circumstances of this case are not comparable to those considered by the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (‘Peko-Wallsend’). In that case the Minister had ignored material, of which he had actual or constructive knowledge, that might have had a direct bearing on the justice of the decision that the Minister was required to make. Peko-Wallsend is not an authority concerning the failure to seek or find material supportive of an applicant’s case.
The above decision was affirmed on appeal in Applicant S76 of 2003 v Minister for Immigration [2005] FCAFC 120.
Particulars (iv) and (v) traverse the merits of the Tribunal’s decision and, as such, do not articulate any jurisdictional error. A merits review is not available in these proceedings. Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at [31] per Brennan CJ, Toohey, McHugh and Gummow JJ said:
…any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision…
This Court cannot engage in merits review and it is not part of its task to do so. Nor is it the task of this Court to conduct a rehearing of the merits. This has been explained on numerous occasions, in particular by Allsop J in SZDFO v Minister for Immigration [2004] FCA 1192 and NARE v Minister for Immigration [2004] FCA 554 and by the Full Federal Court in NAAH v Minister for Immigration [2002] FCAFC 354.
Particular (x) complains that the Tribunal ignored the fact that it is almost impossible for an interpreter, at a Tribunal hearing, to accurately and clearly translate country information. This complaint is without basis because there is no evidence to suggest that the Tribunal’s reference (during the hearing) to short extracts of the country information presented any difficulty for the interpreter. The Tribunal hearing record is silent on this issue and a transcript of the hearing was not filed as evidence in this Court. The absence of a transcript makes it extremely difficult for the applicant to sustain this ground of review.
Particular (xi) asserts that procedural errors affecting the Tribunal decision which constitutes a denial of natural justice. Mr Jordan submits that in the absence of further particulars, and in light of s.422B of the Act, there is no basis for this assertion.
I accept the submissions made by Mr Jordan that the Tribunal’s findings were open to it for the reasons it gave and do not disclose any legal or procedural errors. In particular, the obligation under s.424A(1) did not arise because the Tribunal’s findings were based upon information advanced by the applicant for the purposes of his application to the Tribunal, comprising his evidence at the hearing (CB 58-60) and the contents of his passport (CB 40, 60.9). Therefore, the exception in s.424A(3)(b) of the Act applied.
Conclusion
The applicant in these proceedings is a self-represented litigant, appearing with the assistance of a Mandarin interpreter. I am satisfied that the applicant has been given an opportunity to receive independent legal advice under the Court’s sponsored scheme and has been able to file an amended application containing two grounds of review.
There has also been an attempt to particularise these claims.
The applicant is faced with the difficulty of a language barrier and little comprehension of a legal system in which he is attempting to bring these proceedings. Although the applicant attempted to support his application with oral submissions, it was apparent that he had a limited comprehension of the nature of the proceedings. Mr Jordan assisted the Court with written submissions which were supplemented by oral submission. These addressed all the material contained in the applications. I acknowledge the obligation on the Court to independently consider whether any argument based on the material in the Tribunal decision and the Court Book could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. I am satisfied that no grounds are identified in the applicant’s amended application. Neither is it apparent that any other ground of review exists to suggest that the Tribunal made a jurisdictional error in its decision-making process. Consequently, the applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 1 December 2006
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