SZBYJ v Minister for Immigration
[2005] FMCA 1927
•22 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBYJ v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1927 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in China – adverse credibility finding – RRT relying upon its inability to corroborate the applicant’s claims based upon independent country information – failure to give written notice to the applicant of determinative information relating personally to the applicant – breach of s.424A – finding that the applicant lacked knowledge of democratic principles – procedural unfairness resulting from a vague question and a simplistic and subjective assumption as to the correct answer. |
| Migration Act 1958 (Cth), s.424A |
| Kopalapillai v Minster for Immigration [1998] FCA 1126 SAAP v Minister for Immigration (2005) 215 ALR 162 SZECF v Minister for Immigration [2005] FCA 1200 |
| Applicant: | SZBYJ |
First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2514 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 22 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 22 December 2005 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondent: | Mr J Mitchell |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
A writ of certiorari be issued quashing the decision of the RRT handed down on 2 October 2003.
A writ of mandamus be issued requiring the RRT to reconsider the matter according to law.
No order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2514 of 2003
| SZBYJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was handed down on 20 October 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of political persecution. I adopt as background for the purposes of this judgment paragraphs 2-5 of the Minister's written submissions:
The applicant:
a)arrived in Australia on 10 January 2002; and
b)lodged an application for protection visa on 25 January 2002: court book, page 72.
On 5 August 2002 a delegate of the Minister refused to grant the applicant a protection visa: court book, page 72.
Evidence before the RRT
The RRT had before it:
a)the department’s file;
b)the applicant’s protection visa application;
c)the delegate’s decision record; and
d)other material from a range of other sources: court book, page 74.
Applicant’s claims before the RRT
The applicant claimed in her application for a protection visa that:
e)She organised five large pro-democracy protest activities in Tianjin in May 1989 and she was questioned by security in her work unit.
f)She gave a speech in September 1989 and was detained in November 1989 for 3 months during which she was subject to ‘reform through labour’.
g)On or about 1996 she joined the Social Entertainment Association (‘SEA’) and was detained for 3 months in June 1998 because she had a police record. Further, she was dismissed from her work unit.
h)In April 2001 she published a magazine called ‘Hope’, a monthly publication about democracy, and sent it to universities, institutions and private businesses.
i)She had difficulty getting a passport for a year up to 1999 and needed the help of a contact in the Public Service Bureau (court book, pages 74-75).
The applicant affirmed at the RRT hearing that the claims contained in her application for a protection visa, as summarised above, were an accurate summary of her application. She added, amongst other things, that she was reported in September 1998 and was detained for three months at Hexi Branch of the Public Service Bureau at Tianjin: court book, page 79.
RRT decision
The RRT member concluded that:
a)The application was general, lacked detail and was inconsistent with a bona fide application or commitment to democratic principles as alleged. Specifically:
i)there were no details as to the extent or level of the applicant’s involvement in her alleged pro democracy activities in 1989 or 1998;
ii)the applicant did not provide details as to her experience of ‘reform through labour’;
iii)the applicant did not indicate any in-depth knowledge of democratic principles;
iv)the applicant provided no details as to the speech she allegedly made in September 1989; and
v)the applicant’s answers in respect to her obtaining a passport were incomplete and implausible.
b)There were inconsistencies between information contained in her written application and that given in the RRT hearing. Specifically inconsistencies existed:
i)between her testimony regarding her travel to South Africa which she alleged involved her having to work in a brothel, a claim that was not previously put in her written application; and
ii)between her written claims to have participated in large protests and her oral testimony that the protests were only small.
c)The applicant’s ‘steadiness in place of abode is inconsistent with a person who is allegedly under surveillance’.
d)Based on independent country information there was no evidence that:
i)persons involved in protests in 1989 were still of adverse interest to the present day government;
ii)SEA or ‘Hope’ existed; or
iii)the protests alleged to exist in Tianjin on the dates specified by the applicant did in fact take place.
e)In respect to the applicant’s departure from China:
i)the applicant traveled on a Ministry of Foreign Affairs passport (‘MFA passport’) and on ‘official business’;
ii)the RRT did not accept that she had any trouble getting the MFA passport;
iii)she had been able to visit South Africa in 2001; and
iv)it would be improbable for any person to assist any one on a ‘black list’ or of adverse interest to leave China.
f)The applicant was not ‘up-front and honest in either the information she submitted in her application or that presented at the hearing’ and she was not a witness of credit. Consequently the RRT:
i)did not believe that the applicant was dismissed from her job because of adherence to democratic beliefs or that she had difficulty obtaining a passport;
ii)did not believe the applicant’s story in respect to her travel to South Africa;
iii)preferred the independent country information where the independent country information conflicted with evidence presented by the applicant;
iv)inferred that, where the applicant’s assertions were not supported by other information, the situation alleged to occur did not occur or the fact alleged was not true; and
v)concluded that the periods of detention alleged were a fabrication.
g)The applicant’s application is not genuine, the applicant had no genuine fear of persecution and there was no basis for the claim that she had a well-founded fear of persecution.
The applicant relies upon her amended application filed on 16 June 2004. In that application the applicant asserts a breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”), the improper use of country information by the RRT and significant factual errors. The grounds for review advanced in the amended application are adequately summarised in paragraph 6.3 of the Minister's written submissions, which I adopt for the purposes of this judgment:
a)The RRT did not comply with its obligations under s.424A in respect to specific information, namely that ‘dissidents wanted by authorities could not leave on a passport issued in their own name’.
b)The RRT relied on independent country information that was not correct and proper.
c)The RRT made an error in referring to the applicant’s passport as a Ministry of Foreign Affairs Passport.
d)The RRT failed to request the applicant to provide necessary details for her claims.
e)The RRT member seriously discriminated against the applicant.
f)The RRT failed to carefully and fairly consider the applicant’s claims based on procedures and criteria prescribed in the UNHCR Handbook.
I reject the assertion (if such was intended) that the presiding member was biased, whether that assertion is based upon an allegation of actual or apprehended bias. The applicant claimed in her oral submissions that she was repeatedly interrupted by the presiding member at the hearing conducted by the RRT. The only evidence I have before me is the contents of the green book filed on 22 June 2004. The available evidence provides no support for the assertion.
I also accept paragraph 7.1 of the Minister's written submissions in relation to the asserted error by the RRT in allegedly failing to follow the UNHCR handbook. I would not wish to be taken as suggesting that there is anything wrong in a tribunal using the handbook. Indeed, I would have thought that ordinarily the use of the UNHCR handbook is desirable. However, the handbook has no legal force and a failure to use it does not establish jurisdictional error.
Three matters advanced at least in general terms by the applicant require closer consideration. The first is her allegation that the RRT made a serious error of fact in dealing with her passport. The presiding member found (court book, page 82) that the applicant was travelling on a Chinese Ministry of Foreign Affairs passport and that she was travelling on official business. This was taken by the presiding member in part to establish that it would be improbable for a person to assist anyone on a black list of adverse interest to the country. The passport appears in the court book from page 31. The page of the passport appearing on page 31 includes the words in English, and I assume also in Chinese:
The Ministry of Foreign Affairs of the People’s Republic of China requests all civil and military authorities of foreign countries to allow the bearer of this passport to pass freely and afford assistance in cases of need.
It appears that the presiding member took those words to indicate that the passport was an official Ministry of Foreign Affairs passport. The applicant asserts with some force that she merely held a private passport which carries a standard form of wording appearing in all passports. I think she is almost certainly right. In my view, the presiding member was mistaken in treating the passport as an official passport. The applicant was given an opportunity to correct the misunderstanding at the RRT hearing (see court book, page 80). She attempted to correct the misunderstanding but was unable to do so.
I accept the Minister's submission that even if the RRT made a factual error in relation to the passport, that does not equate to a legal error, let alone a jurisdictional one. The situation would be different if the fact found were a jurisdictional fact. The fact was part of the findings relevant to the outcome before the RRT. It was one of a number of factual findings that the presiding member apparently regarded as of some significance. In itself, however, it was not determinative. I do not regard the factual error as establishing jurisdictional error as the fact is not to my mind a jurisdictional fact. However, it is a matter to be considered in combination with other asserted errors in the RRT’s reasons.
The second issue of substance is whether the RRT breached s.424A of the Migration Act. The particulars provided by the applicant are not to the point. I accept the Minister's submission that there is no obligation on the RRT to give notice under s.424A of information provided by the applicant herself for the purposes of the review. Neither was there any obligation on the RRT to provide written notice of ordinary country information that was not about the applicant personally but was merely about a class of persons including the applicant. Neither was there any obligation on the RRT to give written notice of the RRT’s own reasoning or, in general terms, an absence of information.
Nevertheless, there are two items of information which in my view required disclosure under s.424A. The first appears on page 76 of the court book. The applicant had claimed to have been arrested following pro-democracy demonstrations in China in 1989. On page 76 of the court book the presiding member said:
A search of those arrested through ICI sources does not identify the applicant as being amongst any of the detainees arrested at any time during 1989. Similarly, a search of those detained (via ICI sources) during 1998 could not locate the name of the applicant.
The second item of information appears on page 78 of the court book. The applicant had claimed to have been involved in the publication of the magazine Hope and an organisation called the SEA. At page 78 of the court book the presiding member said:
The Tribunal could not locate any ICI which related to a publication by the name of ‘Hope’ in the sources consulted in Tianjin. Nor could it locate any ICI in the sources consulted concerning the SEA operating in Tianjin on or about 1996.
This was determinative information. The presiding member said this on page 83 of the court book:
Where ICI conflicts with that presented by the applicant, the Tribunal prefers that of ICI. Where the Tribunal could not locate any information to support an assertion made by the applicant, the Tribunal has inferred that either the situation did not occur or the fact alleged is not true.
The applicant's claims were rejected on credibility grounds. The RRT found that the applicant had not been arrested or involved with Hope or the SEA on the basis of the ICI information. There was in my view an obligation on the RRT to disclose that information to the applicant because it was information about the applicant personally. It was not part of the reasoning process. That relevantly appears on page 83 of the court book in the passage I have quoted.
It was not an absence of information in the relevant sense. Where what is determinative is the form and content of the information (including where the information is silent) that is what must be disclosed[1]. Here, it was the form and content of the ICI that was determinative. What needed to be disclosed was that the applicant’s name did not appear among records of those arrested and detained, and that no record of the publication Hope and the organisation SEA could be found. I find that the RRT breached s.424A in not disclosing in writing to the applicant the information I have identified.
[1] SZECF v Minister for Immigration [2005] FCA 1200 at [29]
I note that the information was disclosed to the applicant orally at the hearing. To that extent there was no procedural unfairness. However, as the High Court has found in SAAP v Minister for Immigration (2005) 215 ALR 162 the RRT’s obligation under s.424A goes beyond the obligation deriving from the general law. The failure to comply with s.424A is a jurisdictional error meriting the granting of constitutional writs.
The third issue of substance concerns the rejection of the applicant's claims to have been a pro democracy campaigner on the base of her asserted lack of knowledge of democratic principles. On page 80 of the court book the presiding member records:
The Tribunal asked what was the one overwhelming principle of all democratic governments throughout the world. The applicant replied ‘right of life, law and order and freedom of information’. The Tribunal asked where was the birthplace of democracy. She replied the United States of America.
The presiding member clearly regarded the questions and the answers of matters of importance. The presiding member said on page 83 of the court book:
Based on ICI available, on the balance of probabilities and the conflicting and incomplete evidence of the applicant the Tribunal makes the following findings of fact:
· The applicant has little or no knowledge of democratic principles. It follows that she is not nor ever has been an activist for any pro-democracy movement. Similarly, the periods of detention alleged by her are a fabrication…
The presiding member formed this view at least in part on the basis of the applicant’s response to her questions. At page 81 of the court book the presiding member said:
Equally, the applicant did not indicate any in-depth knowledge of democratic principles in particular the applicant's misconception that the USA was the birthplace of democracy.
On page 78 of the court book the presiding member said:
It is notorious that the birthplace of democracy (or ‘demos’) is Greece and that the overwhelming principle of democratic governments throughout the world is “government by the people for the people”.
In the presiding member's view the applicant got the answer to her questions wrong and hence had little or no understanding of democratic principles. It may be procedurally unfair for a tribunal to make adverse credibility findings based on matters of peripheral detail[2]. It may also be procedurally unfair for a tribunal to make adverse credibility findings on the basis of questions put which are not clear and answers given that may be right or wrong depending on one's subjective and simplistic opinion.
[2] cf Kopalapillai v Minster for Immigration [1998] FCA 1126 which dealt with the then applicable statutory grounds of review
The question put to the applicant about the birthplace of democracy was ambiguous. It is true that “democracy” is a Greek word. It is also true that in classical times the Athenian state, for a time, developed a relatively limited form of direct participatory democracy. As we understand democracy today that form of democracy would be unrecognisable. It is also true that during the classical period most Greek city states were ruled by dictators. Their official title was "tyrant". The word "tyrant" is also a Greek word. If the etymology of words is to be the determinant of what democracy is and where it comes from it might just as easily be said that Greece is the birthplace of tyranny.
If by democracy we mean modern liberal democracy as we understand it today then it is very strongly arguable that the answer given by the applicant as to the birthplace of democracy was correct. The USA established, for the first time, a written constitution which defined the roles and powers of the three arms of government, namely, an executive government, the head of which is popularly elected and which is answerable to the legislature; secondly, a legislature which must submit itself to free and regular elections; thirdly, an independent judiciary. The American constitution (as amended) also recognises the fundamental human rights of its citizens and mandates a further essential element of a democratic society – namely a free press.
The American founding fathers drew on inspiration from French writers but not French political practice up to that time. They also drew on the evolution of representative democracy in England, particularly in the 17th century. However, the development of democracy, as we now understand it, in the USA at the end of the 18th century was a quantum leap on anything that had gone before. The American constitution has been the model, at least in part, for virtually every democratic country that has adopted a written constitution (including Australia). The American constitution is justifiably held in reverence by its citizens. In my view the applicant was probably correct in asserting that the USA is the birthplace of democracy as we understand it today.
On the other hand, the rather simplistic notion of democracy as government by the people for the people would logically lead to an acceptance of the proposition that every communist country that has existed or now exists (including the People's Republic of China) is a democracy. Such countries claim to be socialist democracies and to govern for the people and by the people. That is the essence of the dictatorship of the proletariat.
That exploration is not intended to delve into the merits of the RRT decision. It is, however, intended to emphasise that a question intended to be determinative as to credit, if put, must be put clearly and an applicant must be given an opportunity to explain fully their answer.
On the face of this RRT decision I conclude that the question was not fairly put or the answer was not fairly treated. This points, in my view, to procedural unfairness on an issue of critical importance. It provides further support to my conclusion that constitutional relief should be provided.
I will order that a writ of certiorari shall issue quashing the decision of the RRT handed down on 29 October 2003 and that a writ of mandamus shall issue requiring the RRT to reconsider the application before it, according to law.
There will be no order as to costs. The applicant has represented herself and hence has no entitlement to costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 9 January 2006
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