SZAVD v Minister for Immigration
[2004] FMCA 643
•20 September 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAVD & ANOR v MINISTER FOR IMMIGRATION | [2004] FMCA 643 |
| MIGRATION – Review of Refugee Review Tribunal decision – procedural fairness – adequacy of interpreter – failure to give applicant opportunity to present evidence – no error of law – privative clause – application dismissed. Migration Act 1958 (Cth) Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZAVD & SZAVE |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1143 of 2003 |
| Delivered on: | 20 September 2004 |
| Delivered at: | Sydney |
| Hearing date: | 17 September 2004 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Counsel for the Applicants: | In person |
| Solicitors for the Applicants: | In person |
| Counsel for the Respondent: | J Smith |
| Solicitors for the Respondent: | Clayton Utz Lawyers |
ORDERS
The application be dismissed.
The applicants pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1143 of 2003
| SZAVD & SZAVE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript of the hearing. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 3 May 2003 and handed down on 27 May 2003. The Tribunal affirmed a decision of a delegate of the Minister dated 29 January 2002 not to grant the two applicants protection visas.
The applicants are husband and wife. The relevant background facts are set out in paragraphs 3 to 8 of the written submissions prepared on behalf of the respondent Minister:
3.The applicants are citizens of China who arrived in Australia on 13 October 2001 and lodged an application for a protection visa on 13 November 2001. The only claims in support of the application were made by the first applicant, the husband of the second applicant. It is convenient to refer to the husband as the applicant.
4.The applicant claimed that he had assisted members of a Falun Gong organisation and that, when this was discovered, his home was searched, he was dismissed from his job and placed on the wanted list by the Public Security Bureau.
5.On 29 January 2002 a delegate of the respondent made a decision refusing to grant the applicant (and his wife) a protection visa and on 18 February 2002 the applicant applied to the Tribunal for review of that decision.
6.The applicant and his wife attended a hearing conducted by the Tribunal and gave oral evidence in support of their claims. The Tribunal handed down its decision on 27 May 2003 affirming the delegate’s decision.
Tribunal’s Decision
7.The Tribunal made the following findings:
a) the applicant’s claims are not true… and
b)there is no risk of detention for assisting Falun Gong if the applicant returns to China …
8.On the basis of these findings the Tribunal concluded that the applicant did not meet the criterion in Section 36(2) of the Migration Act 1958 and accordingly affirmed the decision under review.
The Law
Jurisdiction: the effect of section 474(1) of the Migration Act
Subsection 474(1) of the Migration Act1958 (Cth) (the Act) provides:
(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
The effect of section 474 of the Act has been considered by the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (S157/2002) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441.
A decision by the Tribunal that involves a jurisdictional error – either a failure to exercise jurisdiction or an excess of the jurisdiction conferred by the Act – is not a “decision made under the Act” and is thus not a privative clause decision as defined in sections 474(2) and 474(3) of the Act. Such a decision is therefore reviewable notwithstanding section 474.
However, not every breach of a restriction, limitation or requirement in the Act will result in jurisdictional error. The effect of section 474 of the Act is to necessitate an examination of the restriction, limitation or requirement in question to ascertain whether the non-observance of those limitations or requirements results in jurisdictional error in the light of the restrictions on judicial review pursuant to section 474 (S157/2002 at [77]). This is a matter of statutory construction and involves an attempt to reconcile the section 474 restrictions on judicial review with the particular restriction, limitation or requirement.
Reconciliation will not be possible where the non-observance is of an “inviolable jurisdictional restraint” or an “imperative duty” (S157/2002 at [76]). Therefore the jurisdictional error cannot be protected by section 474.
Examples of situations where an error will amount to a jurisdictional error in the light of section 474 are where there has been a “manifest defect of jurisdiction” and “manifest fraud” (S157/2002 at [12]) or where the error involves a limitation or duty which was “indispensable” or “essential to valid action” (S157/2002 at [76]). However, as a general proposition, jurisdictional error for the purposes of section 474 carries the same meaning as under the general laws: SDAV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 43.
A decision by the Tribunal made unfairly and in serious breach of the rules of natural justice is a jurisdictional error and is therefore not within the scope of protection afforded by section 474 (S157/2002 at [37]-[38], [83]).
The protection that section 474 purports to afford will also be inapplicable unless the three Hickman ((1945) 70 CLR 598) provisos are satisfied. The three Hickman provisos are that the decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation and that it is reasonably capable of reference to the power given to the body.
Other relevant statutory provisions
The relevant provisions of the Act are sections 36(2) and 65. Part 866 in Schedule 2 of the Migration Regulations 1994 and article 1A(2) of the Refugees Convention 1951 are also applicable.
The claims before the Department and the Tribunal
The claims which the applicant presented to the delegate of the Minister and the Tribunal are set out in the Relevant Documents (RD) at pages 49-51 and 59-61 in the case of the Department and pages 80-81 in the case of the Tribunal. The claims are further considered in the transcript of hearing before the Tribunal held on 25 February 2003.
The claims are set out in the Tribunal's decision at RD 95-97:
The Applicants state that they are Chinese nationals. They arrived in Australia in October 2001. They state that they are unwilling to return to China as the Applicant husband will be arrested, detained and mistreated because of his political activism and his support for the Falun Gong movement.
The Applicant husband was born in 1956. He stated that he was not a practitioner of Falun Gong, but he provided assistance and support to those who were.
In May 1999 the state owned enterprise where he worked formed a unit to deal with and watch Falun Gong practitioners. The Applicant husband was ordered to lead this group though he did not agree with its aims: that was, to harm Falun Gong.
The group was required to report every fourteen days. The Applicant husband simply collected local newspaper information. At the end of June 1999 another person was put in charge of the group.
In August 1999 Lin came to the Applicant's home. Lin was a childhood friend of the Applicant husband. Lin was both a journalist and a Falun Gong practitioner. He had known where to find the Applicant as their fathers were close. Lin asked the Applicant for assistance as he was being sought by the authorities. The Applicant husband hid Lin in his home and then got a false residential card for him, and eventually helped him to move.
In October 1999 [the Applicant husband] received a letter from Lin advising that he had been able to leave China.
In June 2000 the Applicant husband was visited by a girl who [was] named Li, who said she was a friend of Lin. The Applicant husband knew that Lin had secretly returned to China. The Applicant husband met Lin. Lin asked for assistance for the Falun Gong organisation.
The Applicant was asked why Falun Gong would need his assistance, it had millions of its own members, including senior officials. The Applicant husband said they need to find local information. He collected local information for them. He says that he collected documents detailing the authorities' plans against Falun Gong.
He was able to obtain documents from central Party Committees from his workplace because his company was a very big one.
The Applicant husband then said that at this stage he was secretly practising Falun Gong.
The Applicant husband was issued with a passport in May 2001 and he was able to leave China in October 2001. He states that he was able to obtain a passport and leave because the authorities had not found out about him at that stage and because he had many contacts in the PSB.
In May 2001 XXX, one of Lin's group was arrested, but XXX did not know the Applicant husband.
After the Applicants left China Lin and Li were arrested. The Applicant husband was told this when he telephoned his family. His family had been informed by the Applicant husband's PSB contacts. The Applicant's house was searched by the PSB. His case has been sent to PSB headquarters. His name is on a warrant list. He would be arrested and detained if he returned.
The Applicant was asked if he had been in contact with the Falun Gong organisation here in Australia. He has not.
It was put to the Applicant that his claims were not inherently likely and that perhaps confirmation from Falun Gong that he had assisted the organisation in China could strengthen his application.
The Applicant responded that he is very scared whenever he thinks of returning to China and he does not want to raise this.
The Applicant wife states that she was born in 1966. She met her husband in 1983. She understands that her husband is unwilling to return to China because he had relations with a person who practised Falun Gong. This person asked the Applicant to get documents for him. This person is now arrested.
The Applicant wife states that her husband had a mental disorder in China and again in Australia in March 20002 [sic]. He was advised to take prescription medicine for five years. She is concerned that he may not be able to do this if he returns to China
The applicant husband has also emphasised:
my circumstance is much different from others, because I took advantage of my position at the state-owned enterprises to provide LIN's organization a lot of important information, such as the top-secret documents about proposals on thoroughly clearing up Falun Gong practitioners. Obviously, as a senior staff at the state-owned enterprise, I will and must be subjected to more severe persecution than those ordinary people.
The Tribunal concluded, firstly, that the applicant's claims were not true and, secondly, that there was no risk of arrest or detention for the applicant for assisting Falun Gong on his return to China.
The applicant’s case
The application to this Court states:
The applicant is aggrieved by the decision because -
1. The applicant believes that she is a refugee and therefore satisfied requirements to be granted a protection visa.
2. Mr. Jack Hoysted, constituting the respondent, failed to assess the application of the applicant in accordance with pertinent statutory requirements as prescribed in the Migration Act 1958 (Cth), thereby denying the applicant the benefit of a protection visa.
The grounds of the application include the following
1.I believe that the application should be raised pursuant to S486C(1) of the Migration Act 1958. The decision of Mr. Jack Hoysted, constituting the respondent, has clearly involved that relevant legal procedure, such as trying best to seek relevant evidences or information directly in relation to my application, has not been observed.
…
9. In conclusion, the application is raised pursuant to S486C(1) of the Migration Act 1958. The decision of Mr. Jack Hoysted, constituting the respondent, has clearly involved that relevant legal procedure, such as trying best to seek relevant evidences or information directly in relation to the applicant's visa application, has not been observed.
Paragraphs 2-8 under the heading “The grounds of the applicant”, do not set out any legal grounds, but are rather a recitation of facts.
At the hearing the applicant husband also raised a number of other grounds. Firstly, the interpreter at the Tribunal hearing was from a different province and did not correctly interpret the questions and answers. Secondly, at that hearing, the applicant husband asked the Member what sort of evidence he required and the member said that he did not know. Thirdly, the applicant's wife was not given an opportunity to explain the circumstances which would result in her husband’s persecution.
The respondent’s submissions
The respondent's written submissions were as follows:
9.The Tribunal's decision turned on questions of fact. Essentially, as the Tribunal told the applicant at the hearing, it did not accept that an organisation such as Falun Gong needed the assistance of someone in his position. Further, the Tribunal relied on the fact that the applicant had no evidence apart from his own statements and the evidence given at the hearing to support his claimed involvement with Falun Gong.
10.Once the Tribunal had rejected all of the applicant's factual claims, there was nothing to support a finding that the applicant was a refugee within the meaning of the Convention. Accordingly, the Tribunal was entitled to conclude that the applicant was not a person to whom Australia owed protection obligations.
11.The Tribunal's factual findings dealt with each of the claims which arose from the material put before the Tribunal by the applicant as well the information from other sources to which the Tribunal had regard. In this manner the Tribunal properly fulfilled its function of reviewing the decision of the delegate and its decision was made within jurisdiction.
12.The reference in the application to “trying to best seek relevant evidences or information” does not raise a basis for the grant of constitutional writs. The Tribunal has power to seek further evidence, but there is nothing in the Act which makes it a condition of the exercise of power that it do so: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [43] per Gummow and Hayne JJ.
In his oral submissions counsel for the respondent asserted that the other grounds articulated at the hearing could not be made out.
Consideration
Interpretation at the Tribunal hearing
While I accept that failure to provide quality translation during a Tribunal hearing may breach the requirements of procedural fairness, there must be a factual basis for such a claim. As Mr Smith for the Minister pointed out, evidence must be presented of inadequate interpreting. It must be established objectively from this evidence that the applicant did not have a reasonable opportunity to present his or her case such that it affected the course of evidence or the decision. In the matter before me there has been no evidence of misinterpretation, but rather a mere assertion by the applicant husband to the Court. In my view no legal error has been demonstrated.
Evidence required by the Tribunal
The second ground claimed by the applicant related to the evidence that the Tribunal required. It is correct that at the Tribunal hearing the following exchange took place
MALE APPLICANT: I am very scared and I feel scared even thinking of these things if I return.
TRIBUNAL MEMBER: It seems especially unlikely stories [SZAVD] I would have thought it might be more credible if you actually had some independent support for the story rather than just your own evidence about you and your wife.
MALE APPLICANT: What other evidence or things do you need to support?
TRIBUNAL MEMBER: I don't know [SZAVD]. But it's not as I say [an] inherently likely history and I would have thought that if it were true the Falun Gong organisation here might be able to confirm some of it.
MALE APPLICANT: I am very scared and whenever thinking of returning to China or I do not like to even raise or mention this matter if I can have the protection visa without it. I have to say I feel very scared.
The applicant husband complains that the RRT member was not able to tell him what evidence he required. However, this passage from the transcript must be read in context. The Tribunal member was expressing concerns about the adequacy of the evidence. He was suggesting that the applicant husband might find some support from within the Falun Gong organisation.
This passage in the transcript should also be seen within the whole Tribunal process. The applicant husband had been asked on a number of occasions to provide supporting evidence to the Tribunal. On the application form for the Tribunal, Section D, applicants are instructed as follows:
With this application you should give us any information, documents or submissions that you want the Tribunal to consider, or send them to us as soon as possible. You must have any documents that are not in English translated by a qualified translator.
In the letter of 18 February 2002 from the Tribunal to the applicant husband, acknowledging receipt of his application, the Tribunal says:
If you have any new documents or written evidence, you should send them to the Tribunal at the earliest possible point in the review process.
In a letter dated 24 January 2003 from the Tribunal to the applicants telling them the hearing date, the Tribunal says:
Please read and complete the enclosed form carefully and:
…
· send us any new documents or written arguments you want the Tribunal to consider …
This letter also makes clear that the Tribunal was unable to make a favourable decision on the material that was before it to that date. Thus on at least three occasions prior to the Tribunal hearing, the applicant husband was advised to provide evidence to support his claims. As I have noted, on one of these occasions he was put on notice that the Tribunal was not able to make a decision favourable to him on the evidence before it. Although the applicant husband does not speak or read English, it is clear he was assisted by a migration agent, Ms Priscilla Yu, at all relevant times.
The applicants’ claim is misconceived. It is not for the Tribunal to make out an applicant's case. As was said by Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether the claim is made out.
Furthermore, although the Tribunal has certain powers to obtain additional evidence, “the Act does not impose any duty or obligation to do so”: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ. This ground must therefore be rejected.
Opportunity provided to the applicant wife
The third ground was that the applicant wife was given an inadequate opportunity to explain the circumstances which would result in the applicant husband suffering persecution. In my view this claim is wrong in fact. As I have already noted, the evidence in the Relevant Documents points to three direct invitations to provide the Tribunal with evidence relevant to the applicants' claims. At this time a migration agent was assisting both applicants. Likewise when the delegate was considering their application, they were assisted by a migration agent. They were also provided with an opportunity for a hearing before the Tribunal, of which opportunity they availed themselves. The transcript shows the applicant wife was asked and responded to questions (see, for example, pages 19 and following).
Furthermore, both the applicant husband and the applicant wife were provided with an opportunity to respond to questions on the specific issues before the Tribunal and to present any evidence on those specific issues. Both were given notice of the difficulties the Tribunal had with the application and the evidence then before the Tribunal.
In my view both were provided with a reasonable opportunity to present and support their claims. There is nothing to suggest that they were prevented from fairly presenting their case by the way the matter was conducted in the Tribunal. I find no merit in the claim that they were denied procedural fairness in the way alleged.
Adequacy of consideration of claims
The applicant husband's real concerns can be summarised as a disagreement over the facts. He says that he participated in Falun Gong activities and the Tribunal did not give adequate weight to this. In fact, the Tribunal did not believe him:
I am not satisfied that the Applicant's claims are true. …
…
I am not satisfied that he is at any risk of arrest or detention for assisting Falun Gong if he returns to China.
The transcript of the Tribunal hearing suggests some inconsistency in the applicant husband's answers as to whether he was a practitioner or assisted Falun Gong. Nevertheless the Tribunal rejected the applicant husband's claims. In my view, this conclusion was perfectly open to the Tribunal on the evidence. The applicants are really asking the Court to conduct merits review of the Tribunal's decision. This I am not entitled to do. This ground must be rejected also.
Failure to follow statutory requirements
Despite repeated requests by the Court for particulars on the alleged ground that the Tribunal failed to follow statutory requirements, the applicant husband was unable to provide them. This was apart from the grounds I have addressed above, especially the failure of the Tribunal to identify relevant evidence and the making of a premature decision without that evidence.
As I have already indicated, these claims are misconceived.
Conclusion
In my view the applicants are really attempting to seek reconsideration of factual issues, something I have indicated this Court cannot do. Denial of procedural fairness or natural justice, failure to take a relevant consideration into account, failing to exercise jurisdiction, by failing to consider all of an applicant's claims all can amount to jurisdictional error. None of these grounds have been made out. Here the findings of the Tribunal were reasonably open to it on the evidence before it
I find that the decision of the Tribunal is a privative clause decision having regard to the decision of the High Court in S157/2002.
In addition the decision of the Tribunal was a bona fide attempt to exercise its powers. The decision clearly related to the subject matter of the Migration Act 1958 and to the powers conferred on the Tribunal.
I dismiss the application.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Kelisiana Thynne
Date: 4 November 2004
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