SZCUY v Minister for Immigration - [2007] FMCA 251

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCUY v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 251

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister no to grant a protection visa – applicant is a citizen of China claiming persecution for reasons of his political opinion – credibility – no evidence of bias – no jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 425,474

NADH of 2004 v Minister for Immigration & Multicultural Affairs [2004] FCAFC 328

Applicant:

SZCUY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG2721of 2006

Judgment of:

Scarlett FM

Hearing date:

14 February 2007

Date of last submission:

14 February 2007

Delivered at:

Sydney

Delivered on:

14 February 2007

REPRESENTATION

The Applicant:

Appeared in person

Counsel for the Respondent:

Ms Clegg

Solicitors for the Respondent:

Clayton Utz

ORDERS

The tile of the first respondent is changed to Minister for Immigration and Citizenship.
The application is dismissed.
The applicant is to pay the first respondent's costs fixed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2721 of 2006

SZCUY

Applicant

And

MINISTER FOR IMMIGRATION &CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a review of a decision of the Refugee Review Tribunal. The decision was signed on 7 August and handed down on 22 August 2006. The Tribunal affirmed the decision of a Delegate of the Minister not to grant the applicant a protection (Class XA) visa. The applicant is a citizen of the People's Republic of China who arrived in Australia on 27 July 2002. He applied to the Department of Immigration and Multicultural affairs for a protection (Class XA) visa on 8 August 2002 but that visa was refused on 18 September in that year.
The applicant sought a review of the Delegate's decision but the Tribunal affirmed the Delegate's decision on 7 January 2004. However, on 28 April 2006 the Federal Magistrates Court set the Tribunal decision aside and remitted the application to the Tribunal for determination according to law. The Tribunal then, on 8 June 2006, invited the applicant to attend a hearing to take place on 24 July 2006 at 11 am. The applicant attended the hearing and gave evidence.
A witness gave evidence on his behalf.
The applicant's Migration Agent provided to the Tribunal a statutory declaration by that witness a week before the hearing. The Tribunal decision appears on pages 86 through to 107 of the Court Book and the findings and reasons are to be found on pages 101 through to 107.
The Tribunal was satisfied that the applicant was a national of the People's Republic of China and relied on the applicant's Chinese passport to make that finding.
Unfortunately the Tribunal did not find the applicant to be credible and was not satisfied with the truth of any of his other refugee related claims other than his claim that he may have had a restaurant.
The Tribunal then analysed the subject matter of the applicant's claims and made serious findings about the lack of credibility of those claims. The Tribunal noted the evidence of the applicant's witness but said at page 106 of the Court Book:
In light of the Tribunal's grave adverse credibility finding made above in relation to the applicant and the fact that the Tribunal cannot place any weight on the applicant's own claims and evidence, likewise it cannot place any weight on his statement as credible but find rather that it is a self serving fabrication written expressly for the purpose of enhancing the applicant's claim to be a refugee.
The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations and was not satisfied that the applicant's fear of persecution for a convention reason was well founded. The Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa.
The applicant commenced proceedings in this Court for review of that decision and relies on an amended application filed on
1 February 2007. The applicant attended Court and made oral submissions with the assistance of an interpreter and answered a number of questions from the Bench. He seeks a declaration that the Tribunal decision is invalid and contrary to law and seeks an order that the decision be quashed or set aside and seeks an order that the application be remitted to a differently constituted Refugee Review Tribunal and be determined in accordance with law.
The applicant in his amended application provides two grounds, first that there was an error of law in the Tribunal's decision constituting jurisdictional error and second that there is a procedural error in the Tribunal's decision constituting an absence of natural justice.
Whilst those grounds are merely assertions the substance of the applicant's case is found in the particulars which consist of three separate particulars divided into paragraphs.
First of all the applicant claims the Tribunal failed to consider his application properly and fairly and was biased. In support of that claim he said that it could easily be found that he had from the beginning to the end to try his best to provide detailed information in support of his claims and that the major part of his claims were obviously consistent. However he said the presiding member of the Tribunal tried to pick up some inconsistencies among his claims.
He also asserted he was surprised that on the one hand the Tribunal regarded him as a credible witness and accepted almost all of his claims, but on the other hand the Tribunal completely refused his claims and considered him as an incredible person. He said that although the Tribunal was differently constituted each time the Tribunal's attitudes to him should at least be consistent. This ground must clearly fail.
An allegation of bias is a serious allegation it must be clearly made and strictly proved. It should not be made lightly as it involves an allegation of person fault on the part of the decision maker. As has been pointed out by counsel for the respondent in her outline of submissions a finding that the applicant's claims were inconsistent does not amount to bias. I am referred to the decision of NADH of 2004 v Minister for Immigration & Multicultural Affairs [2004] FCAFC 328 at [14].
There is no evidence of bias on the part of the Tribunal. I asked the applicant what caused him to consider that the Tribunal was biased and his answer was that the Tribunal had not found in his favour. Unfortunately this is a circular argument. The applicant says the Tribunal did not find in his favour because the Tribunal was biased and the Tribunal was biased because the Tribunal did not find in his favour. There is no evidence of bias.
The claim in the amended application that the Tribunal regarded him as a credible witness and accepted almost all of his claims is just wrong. The Tribunal did not regard the applicant as a credible witness.
Quite the reverse. It is clear from the Tribunal decision that the Tribunal was not satisfied with the applicant's credibility. The Tribunal did not find the applicant to be credible, see page 101 of the Court Book.
The Tribunal found that the applicant was not a witness of truth and it could not be satisfied that he had a well founded fear of harm for any convention reasons, see page 102 of the Court Book. In analysing the applicant's claims at the hearing and the applicant's evidence at the hearing, the Tribunal found the applicant's claims to be inconsistent, unconvincing and therefore not credible and indeed expressed the view at page 103 of the Court Book that the Tribunal had grave doubts that a person referred to by the applicant in his evidence ever existed.
The Tribunal found that the applicant had manufactured this person as a means to create a claim for refugee status.
The Tribunal went on to refer at page 106, of the Tribunal's grave adverse credibility findings with regard to the applicant's claims in evidence and referred to the applicant's mendacity on not only the essential elements of his claim but other aspects of his claims discussed in the decision. Those are very serious findings about the applicant's lack of credibility. It is therefore incredible that the applicant claim in his amended application that the Tribunal regarded him as a credible witness and accepted almost all of his claims. The reverse is true.
That ground must fail.
The applicant claimed that the Tribunal failed to comply with s.424A of the Migration Act. He referred to the Tribunal's regard to inconsistencies in his evidence. He claims, incorrectly, that the Tribunal member considered the information in the witness's evidence as the reason, or part of the reason, for making the Tribunal decision to affirm the Delegate's decision and claimed that under s.424A of the Act that the Tribunal should have given him particulars of this information, caused him to understand why it was relevant and invited him to comment on it.
The fact is that the Tribunal did not have any regard to the evidence of the applicant's witness based on the adverse credibility findings about the applicant. The inconsistencies referred to are inconsistencies in the applicant's own evidence to the Tribunal and the applicant's own evidence to the Tribunal comes under the exclusion in s.424A(3) of the Migration Act. The Tribunal was under no obligation to give the applicant particulars of information contained in his own evidence to the Tribunal. There is no breach of s.424A of the Migration Act and this claim failed.
The applicant also claimed that the Tribunal failed to comply with
s.425 of the Migration Act. The applicant, it will be recalled, attended the hearing, gave evidence with the assistance of two different interpreters and arranged for a witness to give evidence on his behalf. On the face of it, it is curious for the applicant to claim that there was a breach of s.425 of the Migration Act.
The applicant claimed that he was restricted by the presiding member in giving his oral evidence during the hearing. He told the Court that the Tribunal member always stopped him before he finished giving his explanation. I note that no transcript has been provided of the hearing. I also note from the Tribunal's hearing record that appears at page 80 and 81 of the Court Book that the hearing commenced at 11.55 am and went through until 1.45 pm. There was then a break until 1.55 pm and the hearing recommenced and concluded at 3.25 pm.
That is a period of time in excess of three hours and does not appear to be consistent with the claim that the applicant's evidence was unduly truncated. In any event, as I said, the applicant has provided no evidence by way of a transcript. The applicant also makes complaints about the standard of interpreting. I note that two Mandarin interpreters took part. There is no evidence in support of that claim and the applicant, when asked by the Court, was not able to give any details.
The applicant submits that s.425 requires the Tribunal to invite the applicant to appear before the hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review. That is correct. He claims, however, that the Tribunal did not make him clearly understand the Tribunal member's genuine concerns or actual issues which she would use as the main reasons in her decision during the Tribunal hearing, so that he was unable to present his arguments against those concerns or issues.
That is not what s.425 of the Migration Act is required to do.
Section 425 does not give an applicant the right to find out the Tribunal's thought processes and then have the right to talk the Tribunal out of a conclusion that the Tribunal might have come to as a result of hearing the applicant's evidence. The discretion of the operation of s.425 of the Migration Act in the amended application is misconceived. I am not of the view that any breach of s.425 has been made out.
I am mindful of the fact that the applicant is not legally represented.
I have read through the Tribunal decision and supporting documents and I am unable to discern any other apparent jurisdictional error. In my view there is no jurisdictional error and as no jurisdictional error has been made out the Tribunal decision is therefore a privative clause decision as defined in s.474 of the Migration Act. It follows that the application will be dismissed.
There is an application for costs on behalf of the first respondent Minister in the sum of $4,500.00. The applicant has been wholly unsuccessful in his claim and there is nothing which would indicate that the Court should not follow the procedure of the practice that costs follow the event. The amount sought of $4,500.00 is an amount provided by the Federal Magistrates Court Rules. It is an appropriate amount and I propose to order that the applicant should pay the first respondent's costs in the sum of $4,500.00.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: