SZCHT v Minister for Immigration - [2005] FMCA 1889

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCHT v MINISTER FOR IMMIGRATION

[2005] FMCA 1889

MIGRATION – Application to review decision of the Refugee Review Tribunal – whether the Tribunal breached section 424A of the Migration Act 1958 – information – findings of credibility – no jurisdictional error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.418(3), 424A, 424A(1), 424A(1), 424A(3)(a), 424A(3)(b), 475A, 476

SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) ALR 471
VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158
SZDQL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 769
SZEBX v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1197
SZCGM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1196
Tin v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1109
Paul v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 289
NAIH of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1010
WAGP v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276
M55 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131
NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744
SZFKL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 931
SZEIE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 987
SZDMJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1034
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 18
VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965
Minister for Immigration & Multicultural & Ethnic Affairs v Wu Shan Liang (1996) CLR 259
Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant:

SZCHT

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 2894 of 2003

Judgment of:

Pascoe CFM

Hearing date:

20 December 2005

Delivered at:

Sydney

Delivered on:

22 December 2005

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Ms R A Pepper

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That the Refugee Review Tribunal be joined as a party to these proceedings.
That the application is dismissed.
That the applicant pay the first respondent’s costs fixed in the sum of $5000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2894 of 2003

SZCHT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application made under s.39B of the Judiciary Act 1903 (Cth) and s.475A of the Migration Act 1958 (Cth) (“the Act”) with respect to a decision of the Refugee Review Tribunal (“the Tribunal”) made on 14 November 2003 and handed down on 9 December 2003 affirming a decision of a delegate of the respondent not to grant to the applicant a protection visa. Consistent with SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162, I join the Tribunal as a party to the application.
The applicant, who is a citizen of the People’s Republic of China, arrived in Australia on 12 August 2002. On 26 August 2002 he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”). On 3 October 2002 a delegate of the respondent refused to grant a protection visa and on 10 October 2002 the applicant applied for review of that decision with the Tribunal.
The applicant relies upon his amended application filed 2 August 2004. In that application that applicant alleges that the Tribunal decision is affected by jurisdictional error as follows:
i)There was an error of law in the Tribunal’s decision constituting jurisdictional error;
ii)There was procedural error in the Tribunal’s decision constituting an absence of natural justice; and
iii)The Tribunal failed to carefully and fairly consider the applicant’s claims based on procedures and criteria prescribed in the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees.
On the second page of the amended application the applicant says that:
i)The Tribunal did not comply with its obligations under s.424A of the Act but as a matter of fact the Tribunal relied on so called independent country information in relation to unregistered church or family church or religious activities development in China during recent years. Accordingly, it was obligated under s.424A of the Act to give me an opportunity to comment upon it. It was obliged to do so by writing to me and sending it to my address. It did not do so and failed to comply with an essential obligation under the Act.
ii)The Tribunal also relied upon the country information that any dissidents wanted by the authorities in China could not leave on a passport issued in their own name. Accordingly, it was obligated under s.424A of the Act to give the applicant particulars of that information and to give him an opportunity to comment upon it. It was obliged to do so by writing to him and sending it to his address. It did not do so and so failed to comply with an essential obligation under the Act.
iii)The Tribunal relied on the inconsistencies between the applicant’s oral evidence at the hearing and his written claims. Accordingly, it was obligated under s.424A of the Act to give him an opportunity to comment upon it. In particular the Tribunal failed to consider the mistakes in the written material presented to the Tribunal by the applicant’s former migration agent and that his inability to understand English impeded him to check those documents.
iv)The Tribunal failed to give the complete information which was used as the reason for affirming the decision under review and that the decision was unfair. The Tribunal failed to explain to him clearly and thoroughly the information it used in its decision and that information under s.424A was not provided.

The applicant’s claims

The applicant was born in China and claims to be a citizen of that country. In his written visa application the applicant claimed to fear persecution by reason of his religious beliefs and activities. He is a Christian. His wife and daughter remain in China with his mother. He travelled to Australia on a Chinese passport issued on 30 November 2001 and valid for five years. In summary, the applicant claimed the following:
a)The Chinese government has persecuted his religious community for its religious beliefs;
b)In 1974 the church which he and his family attended was destroyed by the authorities and his parents went “underground”;
c)He has been frequently harassed by the police without notice. His home was searched for counter revolutionary material and he has been hauled to police stations for interrogation and interview;
d)The police have come into his home and confiscated bibles and other religious books;
e)He has been threatened with gaol if he continued to hold religious gatherings; and
f)On 28 May 2002 the police arrested two Christian brothers whilst at a gathering and detained them for two days. They also confiscated religious books and brochures but the applicant escaped arrest and detention.
In his application before the Tribunal the applicant claimed to be a member of the “Screaming Group” known as the Shouters and stated that his family had experienced much oppression and tribulation. He claimed that he was tortured by the Chinese government, a Christian brother died as a result of long term torture by the Chinese government, that another Christian brother was arrested and detained for one month and a third Christian brother was also arrested and imprisoned for a year. He claimed that his name is on a black list, that he left China to avoid arrest and that after his departure from China the local police attended his mother’s home, threatened her and removed his bibles. He claims to be in extreme danger.
A Tribunal hearing was held on 26 August 2003. The applicant attended and was assisted by a Mandarin interpreter. The Tribunal had before it the Department’s file, the protection visa application and other materials obtained from a range of sources. The Tribunal put to the applicant the omissions and the differences between the claims he made in his protection visa application and his review application. The Tribunal also discussed with the applicant the independent country information it had before it (See in particular page 72 of the Court Book).

The Tribunal decision

In its assessment of the applicant’s claims the Tribunal was not satisfied on the evidence that the applicant met the test of well founded fear in the Convention. The Tribunal did not find the applicant to be a credible witness. Its finding was based largely on the implausible and internally inconsistent explanations he gave for the discrepancies in his claims. The Tribunal noted the failure of the applicant to explain his ability to exit and return to China on two occasions. This led ultimately to a finding by the Tribunal that he was never of adverse interest to the police or PSB. The Tribunal found the applicant’s knowledge of Shouter history to be vague and lacking specific knowledge. It also found that his evidence concerning attendance at church in Australia was vague.
The applicant also contends that the Tribunal failed to comply with its obligations under s.424A of the Act. In particular he claimed that the Tribunal failed to give him an opportunity to comment on independent country information in relation to the unregistered church or the family church and information that dissidents wanted by the authorities in China could not leave on a passport issued in their own name. I reject this ground. It is plainly apparent on a reading of the Tribunal decision that the Tribunal invited the applicant to comment further on his claims and invited him to attend a Tribunal hearing to give oral evidence and present further arguments. The Tribunal had regard to independent country information relating to Shouters and the passport issue and discussed this information with the applicant. In any event the Tribunal was not obliged under ss.424A(3)(a) and 422B to provide details of this information to the applicant.
Ground D of the application raises issues related to the decision of SAAP (supra), read in conjunction with Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27 at [17]-[35]. The question the Court must determine is whether there was a breach of s.424A(1) of the Act insofar as the Tribunal did not put to the applicant in writing information contained in the applicant’s visa application which was inconsistent with his oral evidence given at the Tribunal hearing and also, inconsistent with the information contained in his review application. Counsel for the respondent conceded that assuming the said information is “information” for the purposes of s.424A(1) it does not fall within the exclusion provision of s.424A(3)(a). For s.424A to operate the relevant information must also be the reason or part of the reason for the Tribunal’s decision within s.424A(1)(a). The Full Court of the Federal Court held in VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) ALR 471 at [29]-[43] that there is a requirement that the information be integral to the Tribunal’s reasoning process (See also VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [51]-[54]; SZDQL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 769 at [55]-[59], per Sackville J).
It is apparent that the Tribunal’s reasoning in this case was based on the applicant’s lack of credibility. It does not matter that the Tribunal during the hearing referred to the visa application and its contents (SZEBX v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1197 at [22], per Allsop J; SZCGM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1196 at [21]-[22], per Allsop J).
The concept of “information” used in the context of s.424A has over time been given many different shades of meaning. The subjective thought process of the Tribunal in its assessment of information provided to it pursuant to s.418(3) is however not information for the purposes of s.424A(1) (Tin v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1109 at [53], per Sackville J; Paul v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 289 at [95], per Allsop J). Neither is an impression formed by the Tribunal in respect to material otherwise put before the Tribunal pursuant to s.418(3) information within the meaning of s.424A(1) (NAIH of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1010 at [4]-[9], per Branson J; WAGP v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276 at [284]).
At the Tribunal hearing the applicant relied upon his protection visa application and the information contained in that application and gave that information to the Tribunal for the purposes of his review application (s.424A(3)(b); M55 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131. To the extent that NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744 suggests the contrary, the decisions of SZFKL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 931 at [7]-[8]; SZEIE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 987 at [40]; SZDMJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1034 at [5]-[6], per Gyles J are preferred. Accordingly, I am of the view that the obligations imposed by s.424A do not apply to the protection visa application and the related information provided by the applicant.
In any event information given to the Tribunal for the purposes of the application includes the protection visa application, any document attached to it and any other document put before the Tribunal by the applicant (VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 18 at [19], per Finkelstein J). I note also Dowsett J’s comments in SZERV (supra) at [11] that everything an applicant says before a Tribunal falls within s.424A(3)(b).
The decision in SAAP does not mean that a breach of s.424A must lead to the invalidity of the Tribunal decision where there are other grounds for the decision that are unaffected by such a breach. As North J stated in VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965 at [33]:
SAAP does not stand for the proposition that if there be a breach of s 424A in relation to one ground upon which a decision is made, and there exists other grounds upon which the decision is not or cannot be impeached, the decision nonetheless fails.
The applicant also takes issue with the incorrect material put before the Tribunal by his migration agent. The applicant’s migration agent submitted material to the Tribunal before the hearing which suggested that the applicant was a Falun Gong Practitioner but later advised that that statement was incorrect. It is clear that, despite the applicant’s concerns, the Tribunal throughout its decision accepted that any reference to Falun Gong in his review application was an error on the part of the applicant’s former migration agent and dealt with his claims on the basis that they related to his practice as a Christian. Accordingly, I am satisfied that the Tribunal correctly noted the error and heard the application based on the basis of correct information.
In my view a number of the applicant’s application attempt to traverse the merits of the decision. This Court is precluded from engaging in such review (See Minister for Immigration & Multicultural & Ethnic Affairs v Wu Shan Liang (1996) CLR 259 at [272], per McHugh J).

I explained this to the applicant a number of times during the hearing. The Tribunal’s findings were findings of credibility. This is a finding of fact par excellence (Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [423]).
As no jurisdictional error is apparent the decision is a privative clause decision pursuant to s.476 and therefore the application must be dismissed with costs.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Pascoe CFM

Legal Associate: Peter Smith

Date: 22 December 2005