SZDGC v Minister for Immigration
[2006] FMCA 930
•24 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDGC v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 930 |
| 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, 420, 422B, 424, 424A, 425, 430, 474, 483A |
| Abebe v Minister for Immigration (1999) 197 CLR 510 Applicant A v Minister for Immigration [1997] 190 CLR 225 Applicant M55 v Minister for Immigration [2005] FCA 31 Applicant NAAF of 2002 v Minister for Immigration [2004] HCA 62 Applicant WAEE v Minister for Immigration [2003] FCAFC 184 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Australian Gas Light v Valuer-General (1940) 40 SR (NSW) 126 Chan v Minister for Immigration (1989) 169 CLR 379 Yo Han Chung v University of Sydney & Ors [2002] FCA 186 Davis v Minister for Immigration [2004] FCA 686 Minister for ImmigrationvLay Lat [2006] FCAFC 61 Minister for Immigration v SCAR (2003) 198 ALR 295 Minister for Immigration v Yusuf (2001) 206 CLR 323 NADH v Minister for Immigration [2004] FCAFC 328 NAMW v Minister for Immigration (2004) 84 ALD 325 Plaintiff S 157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Re Minister for Immigration; Ex parte Applicant S154/2002 (2003) 201 ALR 437 Re Minister for Immigration; Ex parte Epeabaka [2001] HCA 23 SAAP v Minister for Immigration [2005] HCA 24 SZDMJ v Minister for Immigration [2005] FCA 1034 SZEEU v Minister for Immigration [2006] FCAFC 2 SZHIB v Minister for Immigration [2006] FCA 611 SZHIB v Minister for Immigration [2006] FMCA 137 Tran v Minister for Immigration [2002] FCA 1522 VUAV v Minister for Immigration [2005] FCA 1271 WACW v Minister for Immigration [2002] FCAFC 155 |
Applicant: | SZDGC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1034 of 2004 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 19 May 2006 |
| Date of last submission: | 17 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 July 2006 |
REPRESENTATION
| Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Counsel for the Respondents: | Mr J Mitchell |
| Solicitors for the Respondents: | 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 7 April 2004 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to this application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1034 of 2004
| SZDGC |
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 Magistrates Court of Australia on 7 April 2004 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 20 February 2004 and handed down on 11 March 2004, affirming a decision of a delegate of the first respondent made on 15 May 2003, refusing to grant the applicant a Protection (Class XA) visa. 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 “SZDGC”.
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 Luke Hardy, reference N03/46543, contains the following background material. The applicant, who claims to be a national of the People’s Republic of China (“PRC”), arrived in Australia on 6 January 2003. On 20 January 2003, the applicant lodged an application for a protection visa with the Department of Immigration under the Act. On 15 May 2003, a delegate of the Minister refused to grant a protection visa and on 4 June 2003, the applicant applied to the Tribunal for review of the delegate’s decision.(Court Book (“CB”) 95)
In her primary application, the applicant claimed she resided at the same address in Qingdao City, Shandong Province from January 1990 to January 2003 and then travelled to Australia. She claims she was educated up to middle school, receiving a total of nine years of education. She worked at the same state-owned elevator factory in Qingdao from August 1976 to July 2001. The applicant took up the cause of workers who were retrenched from the factory and she was almost dismissed from the company. The government ran a programme to assist the (largely female) retrenched population to retrain and find new work. However, by 2001, retrenched former state employees were finding it hard to become re-employed. The applicant’s troubles began when a colleague of hers was insufficiently compensated for a work related injury and then dismissed in 2000. The applicant wrote a report to the factory seeking a review of her case, in her capacity as “Standing Member of Women at the Workers’ Union”, but was unsuccessful. She claimed the head of the factory warned her not to persist with the matter. She was also asked to participate in the factory’s monitoring of the government’s “One Child Policy”, which the applicant was not willing to do. She does not claim any liberty for effects arising from her reticence. She does not claim that she actually refused, and in any event, she claims that her problems related to other subsequent events.
The applicant claims that in April 2001, the factory dismissed 120 workers, 80% of whom were female. She organised a petition which was sent to the factory and its Qingdao city administration. The petition was unsuccessful and the city administration and media ignored it. Her and two fellow unionists decided to hold a protest on 22 April 2001. They applied for a police permit and on 19 April 2001, were called to attend an interview with the Public Security Bureau (“PSB”). She claims it was a trap as the three of them were detained, interrogated and not released until 10 May 2001, on the condition that they signed a statement undertaking to dissuade other colleagues from protesting in the future.(CB101-2)
The balance of the applicant’s claim is a detailed account of her participation with the Union, which organised a range of protest activities to draw attention to its cause.(CB 102-6)
Tribunal’s findings and reasons
A convenient summary of the Tribunal’s reasons are contained in the respondents’ written submissions prepared by Mr Mitchell and I adopt the following paragraphs of those submissions:
4.1 The RRT member made the following positive findings:
(a) The Applicant left the PRC legally.
(b) The Applicant worked for an elevator factory up until her employment was terminated in mid-2001.
(c) The Applicant was a standing member of her workers’ union.
(d) The Applicant did participate in a petition that “simply came to nothing for all of the petitioners”.
(e) The staging of protests against the implementation of mass retrenchments, lack of compensation and loss of state benefits was not unusual.
4.2The RRT member made the following adverse findings and adverse credibility findings:
(a) He did not accept that the Applicant’s rank in the union gave her the power to try to set the union’s agenda or that the Applicant discovered “to her surprise” that the union was a toothless tool of government when it came to dealing with the retrenchment issues arising from the structural changes to the PRC economy.
(b) It was hard to accept that the Applicant would have been detained in Qingdao by the PSB merely for applying for a permit application when the PSB’s first option would simply have been to deny the permit. It is implausible that police would jail the Applicant just for applying for a permit to demonstrate.
(c) The Applicant’s account of herself trying to organise the demonstration at short notice with just two colleagues, completely separate from the union of which she had been an active and well-placed member, was not plausible.
(d) The Applicant improvised the story about applying for a passport two months before it was issued. Further, the Applicant was improvising “on the run” when she said that her passport application was processed by a “higher” authority unaware of her then-concurrent detention by the local or country-level PSB.
(e) The Applicant applied for her passport much closer to the date on which it was issued, over a period closer to a week.
(f) The Applicant was interested in travel abroad when she applied for her passport and not the business of fighting for other people’s labour rights or retrenchment conditions.
(g) The Applicant’s evidence about further anti-government activities and later dissident activities lacked credibility. The Applicant’s claims about the number, dates and nature of protests which she claimed to be associated with after her detention were false and misleading.
(h) The Applicant gave poor and implausible explanations as to why the police did not even start to come looking for her after the July 2001 and/or January 2002 demonstrations took place.
(i) The Applicant’s claims about the 8 January 2002 demonstration lacked credibility and were just another improvisation concocted by the Applicant.
(j) The Applicant’s evidence about 12 December 2002 and the inside knowledge she gained about her friend denouncing her was a fabrication and the Applicant’s introduction of the claims about the contact within the PSB was an improvisation, were not credible and the supporting documents were also a fabrication as were the documents provided to the RRT on the day of the hearing.
(k) The RRT did not accept that the Applicant’s employment was terminated for reasons other than economic rationalism.
(l) The RRT did not accept that the Applicant’s participation in protests attracted the problems claimed by the Applicant. Her claims about trying to organise the protests were poorly-concocted fabrications.
(m) The Applicant was of no relevant interest to the authorities leading up to her departure.
(n) The Applicant was not a reliable witness. Consequently the RRT was not satisfied that the Applicant faces a real chance of Convention related persecution in the PRC.
Application for review of the tribunal’s decision
On 7 April 2004, the applicant filed an application for review under s.39B of the Judiciary Act. On 5 October 2004, the applicant filed an amended application which contained the following grounds:
There was an error of law in the Tribunal’s decision constituting a jurisdictional error.
There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
Particulars
I never ever believe that Mr Luke Hardy, the Presiding Member of the Tribunal has complied with his obligations under Section 424 of the Migration Act 1958 (“the Act”).
a) The Tribunal Member failed to give me complete Independent Country Information (“ICI”), which has been used as the reason for affirming the unfair decision of the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”).
b) The Tribunal Member failed to explain to me, clearly and thoroughly, the ICI information, he used in his decision later on, will directly relating to my review application for DIMIA’s decision. The Tribunal Member failed to ensure that I fully and complete understand the information that she would be used in her decision before and during the hearing.
c) The Tribunal Member failed to provide me the information by one Section 424A. Applicant must be given certain information by one of the methods specified in section 441A of the Act.
Mr Luke Hardy, the Presiding Member of the Tribunal, failed to carefully consider my statement provided after the hearing as follows:-
A. My experience between 01/2000 and 05/2001
In January 2000, I was elected as the Standing Member of Women at the Workers Union of Qingdao Elevator Factory. During the following period from January 2000 to May 2001, I tried to struggle for the fundamental human rights of those ordinary workers, especially the basic human rights of those women. Particularly, after I heard unfair decision made by the factory on Ms Qiu Mei Wang’s matter in March 2000, I tried my best to strive for respect and protection of Ms Wang’s basic human rights. Unfortunately, I could not get success eventually.
The failure of Ms Wang’s matter made me eventually understand that the Workers Union was actually a tool of the PRC authorities, and the union was unable to do anything which benefited our ordinary workers. Therefore, when 120 workers (over 80% among them were female) were dismissed early in April 2001, I began to unite those victims together, and intentionally to create a social influence.
Unexpectedly, I, together with other two workers’ representatives, (Mr Zhang and Mr Fang) was detained on 19th April 2001 finally and we were not allowed to return home until 10th May 2001.
Frankly speaking, the protest, which was organized by me in April 2001, was not unusual action in China based on its current situation. Similarly protests of unemployed people are frequently happened not only in Qingdao (My city), but also in other cities in the country. Therefore, I was not sentenced to imprisonment; instead, I was detained for a short period and forced to sign on a statement in which I promised to persuade those unemployed workers not to have any protests in the future. Obviously, the PRC authorities, at that time, just intended to threaten me, to give me huge mental pressure, and to force me to give up my political opinions.
B. My experience between 05/2001 – 12/2002
However, I did not give up. I refused to persuade those unemployed workers as I promised during the detention. I insisted that the Workers Union should not be a tool of the PRC authorities, and it should be an organization which was only for the purpose to protect the basic human rights of those ordinary people. I actively promoted my political opinions among workers, and still intended to plan a large protest. Although I did not have any substantial action at that time, my political opinions came to special attention to the PRC authorities. As a result, I was dismissed on 11th July 2001. It was from that time when I finally realized that we must have our own organization - an independent union.
My organization – ‘Home of Unemployed’ (actually the Preparation Committee for Independent Union) – was established on 8th January 2002. There were two targets at the beginning: 1) to recruit members and to develop our organization; and 2) to distribute propaganda materials in order to promote our political opinions.
As a matter of fact, during the period from January 2002 to December 2002, I, and other major leaders, took care of every action of the organization, and every moment was well organized according to strict disciplines of underground political organization. Therefore, I did not have any troubles during that period, because the authorities did not find my involvement in the underground organization.
It may be questionable that I have had bad record in the past. However, as I have mentioned above, the protest organized by me in April 2001 was not unusual action in China and millions of people lost their jobs in China, and thus I could escape from persecution during that period.
C. My experience between 12/2002 – 01/2003
I have been thrown into a dangerous situation when Mr Xu’s group was destroyed by the PSB early in December 2002 and particularly after Mr Xu was arrested on 12 December 2002, because Mr Xu’s confession would make the authorities clearly know that I am the founder, major leader and key member of the underground political organization. I therefore had to leave China with assistant of a secret member in the Tourism Bureau of Qingdao City as soon as possible.
As I claimed at the hearing, it has been confirmed that I have already come to the special attention of the PRC authorities, and I have in fact been in the targeted group of the PSB. It has also been evidenced by those documents provided to the Tribunal at the hearing. I therefore do indeed have a real chance of being persecuted on return, and my fear of persecution must be well-founded.
Mr Luke Hardy, the Presiding Member of the Tribunal, failed to carefully consider all of my claims as a whole, instead, the Presiding Member of the Tribunal intentionally to cut my claims into small and isolated pieces;
Mr Luke Hardy, the Presiding Member of the Tribunal, failed to get professional opinions from independent and professional bodies regarding to those documentary evidences provided by me. Those documentary evidences, in fact, have strongly supported my claims for a protection visa.
Mr Luke Hardy, the Presiding Member of the Tribunal, failed to comply with Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (“UNHCR Handbook”).
a) I have been guided by Paragraph 190, Part II, UNHCR Handbook that a qualified examiner should have necessary knowledge and experience, and an understanding of an applicant’s particular difficulties and needs. Especially, an applicant for refugee status is normally in a particularly vulnerable situation. He finds himself in an alien environment and may experience serious difficulties, technical and psychological, in submitting his case to the authorities of a foreign country, often in a language not his own.
Ms Luke Hardy, the Presiding Member of the Tribunal, failed to demonstrate its necessary knowledge and experience and such an understanding.
b) I have been guided by Paragraph 196, Part II, UNHCR Handbook, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. It may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Also, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.
Ms Luke Hardy, the Presiding Member of the Tribunal, failed to use all the means at its disposal to produce the necessary evidence in support of the application. Also, the Tribunal failed to demonstrate that there are good reasons to the contrary.
c) I have been guided by Paragraph 42, Part I, UNHCR Handbook, the applicant’s statements cannot, however, be considered in the abstract, and must be viewed in the context of the relevant background situation.
Ms Luke Hardy, the Presiding Member of the Tribunal, failed to consider the applicant’s statements in the context of the relevant background situation. Especially, the Tribunal failed to demonstrate its sound knowledge of conditions in the applicant’s country of origin.
d) I have been guided by Paragraph 48, Part I, UNHCR Handbook, possession of a passport cannot therefore always be considered as evidence of loyalty on the part of the holder, or as an indication of the absence of fear. There may be cases where a passport has been obtained surreptitiously. In conclusion, therefore, the mere possession of a valid national passport is no bar to refugee status.
Ms Luke Hardy, the Presiding Member of the Tribunal, failed to consider the fact that the mere possession of a valid national passport is no bar to the applicant’s application, because his passport is obtained surreptitiously.
e) I have been guided by Paragraph 53, Part II, UNHCR Handbook, the various elements involved may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a claim to well-founded fear of persecution on “cumulative grounds”.
Ms Luke Hardy, the Presiding Member of the Tribunal, failed to give weight to the fact that various sufferings and experiences of the applicant in China, if taken together, must produce a strong effect on his mind that can reasonably justify his claim to well-founded fear of persecution on cumulative ground.
I never ever believe that the decision made by Ms Luke Hardy, the Presiding Member of the Tribunal, is fair and correct. (copied without alteration or correction)
Reasons
The applicant is a self-represented litigant who appears with the assistance of a Mandarin interpreter. At the first directions before a Registrar on 29 June 2004, the applicant indicated her desire to participate in the Court’s Legal Advice Scheme and was subsequently allocated a panel lawyer. Those details were forwarded to the applicant indicating that she should contact the panel lawyer to arrange a conference. A letter on the Court file indicates that the panel lawyer received no contact, though two letters were forwarded to the applicant offering an appointment to discuss the applicant’s case and provide advice. No response was received. The applicant was also provided with an opportunity to file an amended application, which she did. However the amended application is substantially the same as the original application. The applicant also filed written submissions on
30 March 2006.
The applicant, in her written submissions, submits that the Tribunal failed to comply with its obligations under s.424A of the Act and identified the following aspects:
a)The applicant claims that the presiding member failed before, during, or after the Tribunal hearing to provide the applicant with particulars of information, especially negative information or issues, which were in direct relation to the final decision.
b)It was further alleged that the member failed to ensure that the applicant understood those pieces of information or issues that would be directly relevant to the review application.
c)Thirdly, the member had failed to invite the applicant to comment on those negative pieces of information or issues.
I will refer to these claims below.
The applicant then makes the claim that the Tribunal failed to comply with its obligation under s.425 of the Act. Clearly the applicant was invited to attend the Tribunal hearing of 27 November 2003. This was by letter addressed to the applicant and her agent and dated
3 November 2003.(CB 59) The invitation was accepted and a response to invitation was forwarded to the Tribunal and received on
6 November 2003.(CB 61) The Tribunal decision records that the applicant attended the hearing on 27 November 2003, which was conducted with the assistance of a Mandarin interpreter. Although the applicant was represented by an adviser, the adviser did not attend the hearing. The applicant also did not bring any witnesses.(CB 95)
The critical aspect of the Tribunal’s duty to review a delegate’s decision is the duty to invite the applicant to appear before it to give evidence and present arguments relating to issues arising in relation to the decision under review: Applicant NAAF of 2002 v Minister for Immigration [2004] HCA 62 at [27] per McHugh, Gummow, Callinan and Heydon JJ:
One aspect of the overall duty to review was the duty to invite the appellant to give evidence and present arguments: s 425(1). The duty to review therefore entailed a statutory duty to consider the arguments presented and in that way to afford the appellant procedural fairness.
The Tribunal’s obligation to review the delegate’s decision is a statutory obligation and the obligation under s.425 of the Act is to provide a ‘real and meaningful’ statutory invitation as the Full Federal Court found in Minister for Immigration v SCAR (2003) 198 ALR 295 at [35] to [38]. It is clear from its terms that compliance with s.425 is a precondition of a valid exercise of the Tribunal’s jurisdiction and that a failure to comply with the section involves jurisdictional error.
In support of her claim that s.425 of the Act was not complied with, the applicant provided two particulars:
a.During the Tribunal’s hearing, the Presiding Member failed to provide me a fair chance to give my oral evidences; and on many occasions, I was only required to answer the Tribunal’s questions, simply and directly; and
b.During the Tribunal’s hearing, the Presiding Member failed to invite me to comment on those pieces of negative information or negative issues, because he failed to provide them to me clearly and completely.
There was no transcript of the Tribunal hearing before the Court. There is nothing in the Tribunal’s reasons for decision (which is the only evidence of what occurred in the Tribunal hearing) to suggest that the applicant took issue with the presiding member that she was unable to give evidence clearly and completely. The decision reveals that the Tribunal gave the applicant every opportunity to expand on the information previously provided, address relevant issues raised by the Tribunal and clarify concerns and inconsistencies identified by the Tribunal (CB 110-111):
The Tribunal allowed the Applicant until 5 December 2003 to make any further submissions in relation to her evidence and in response to the many potentially adverse positions it had put to her in the course of the hearing.
On 5 December 2002, the Applicant lodged a further submission. It is by and large a repetition of most of her initial claims, apart from a few variations that are inconsistent with what she originally claimed.
On 17 July 2006, the applicant filed a new submission with an attachment containing the transcript of the Tribunal hearing. The submission is not in the form of an affidavit nor is the transcript verified. The applicant states that she will use this transcript as evidence that the Tribunal failed to comply with its obligations under s.425 of the Act. No orders were made by me during the hearing in respect to the filing of these submissions. I have reviewed the transcript and on my assessment, it does not contain material to support the applicant’s claims. At the commencement of the transcript, the Tribunal member clearly states how the hearing will be administered. It indicates to the applicant that the Tribunal has been unable to reach a decision favourable to the applicant based on the material in her file alone. She was invited to attend the hearing to provide further evidence to the Tribunal by responding to the Tribunal member’s questions. The applicant was told that she will be given the opportunity to speak for and about herself and put forward any further information in support of her claims. The Tribunal member indicates to the applicant that some of the questions and observations that he will make will challenge the applicant’s claims, but this does not indicate that the Tribunal member has predetermined or carried forward any decision against the applicant. The applicant is advised that she may rebut anything that the Tribunal puts to her. The applicant is advised that the interpreter is engaged from an external agency and is sworn to undertake in full confidentiality the proceedings by accurately translating whatever the applicant states.
The applicant was accompanied to the Tribunal hearing by her migration adviser who was present throughout the hearing and was invited to assist. The applicant and the interpreter were questioned as to their ability to understand each other and indicate if they had any problems with translation. The parties were advised to break up any long responses into small sequence so that the interpreter and the parties could accurately relay everything that was being said. The Tribunal member indicated that the questions were being asked to establish consistent detail to support the fact finding obligations of the Tribunal member. At the completion of the hearing, the adviser sought an opportunity to review the Tribunal hearing tapes and to submit post hearing submissions to clarify a number of issues which appeared to contain inconsistencies in the applicant’s evidence. The Tribunal member agreed with that proposition and granted the adviser one week to prepare and submit those submissions.
In the circumstances, I am not satisfied that there is any material contained within the transcript that supports the applicant’s claims. Consequently, I do not believe it is necessary to request the parties to file any further submissions or reconvene the hearing.
On the evidence before the Court, there has been no complaint or suggestion that the Tribunal did anything other than give the applicant every opportunity to address issues that were critical to the Tribunal decision. The Tribunal met its substantive obligation to invite the applicant to appear before it, and to give evidence and present arguments in relation to the decision under review. The Tribunal would have failed to exercise its jurisdiction or extended jurisdiction if the applicant had not been informed of her rights or the procedural aspects of the Tribunal hearing, which would give rise to unfairness and breach of the substantive obligations under s.425 of the Act. As indicated above, there is no other evidence to indicate that the Tribunal has not followed the appropriate procedures or in any way denied the applicant procedural fairness.
The Tribunal is entitled to exercise some control over the direction of its hearing by asking questions. In Re Minister for Immigration; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57], Gummow and Hayden JJ affirmed that proceedings before a tribunal are not adversarial but inquisitorial. That is, a tribunal member is not obliged to proceed like in cross examination, seeking detailed amplification of claims made. Similarly, in NADH v Minister for Immigration [2004] FCAFC 328 at [124] to [125], the Full Federal Court held that the Tribunal is entitled to ask questions to satisfy itself of matters: Re Minister for Immigration; Ex parte Epeabaka [2001] HCA 23 at [52].Further, the Tribunal is only obliged, as an inquisitorial body, to consider evidence and material that is put to it by the applicant: Abebe v Minister for Immigration (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ.
I acknowledge that the applicant is a self-represented litigant who appears to be obtaining assistance either from an agent or other unidentified parties. The result is that the amended application and written submissions, together with the applicant’s oral submissions during the hearing in this Court, raise issues interspersed with extraneous material and the occasional incorrect reference to provisions of the Act. I believe a convenient way to address these submissions is to adopt the format provided by Mr Mitchell in his written submissions, which summarises the issues raised and the particular grounds referred to in support of those claims:
5.1In the Applicant’s Amended Application for judicial review filed on 4 October 2004 the Applicant claims the following grounds of review:
(a) Error of law.
(b) Procedural error.
5.2The particulars of these grounds are as follows:
(a) Section 424 was not complied with because:
(i) the RRT failed to give the Applicant complete independent country information.
(ii) The RRT failed to explain the independent country information to the Applicant and filed to ensure that the Applicant fully and completely understood that information.
(ii) The RRT failed to provide the Applicant with the information by s 424A(1).
(b) The RRT failed to carefully consider the Applicant’s statement provided after the hearing.
(c) The RRT failed to carefully consider the claims of the Applicant as a whole.
(d) The RRT failed to get professional opinions from independent bodies regarding the documents provided by the Applicant.
(e) The RRT failed to comply with the UNHCR Handbook.
(f) The RRT decision was not fair or correct.
Mr Mitchell submits in his written submissions that the Tribunal correctly summarised the criterion that it was to apply. It drew inferences and made findings based on its assessment of the evidence before it.(CB 96-97) Unless the applicant is able to demonstrate that there was no evidence to support the Tribunal making the inferences it did, no error of law arises from the factual findings of the Tribunal: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355; Australian Gas Light v Valuer-General (1940) 40 SR (NSW) 126 at 137 to 138.
In respect of the applicant’s claim that the Tribunal failed to comply with s.424A of the Act, Mr Mitchell submits that the Tribunal was not obliged to provide the independent country information to the applicant, as it was information that was not specifically about the applicant or another person and therefore fell within the exception in s.424A(3)(a): NAMW v Minister for Immigration (2004) 84 ALD 325 at [126] and [138]. Mr Mitchell drew the Court’s attention to the fact that it is now clear that the effect of s.422B of the Act is that the common law natural justice hearing rule is excluded. I refer to Minister for Immigration v Lay Lat [2006] FCAFC 61 at [66] per Heerey, Conti and Jacobson JJ:
What was intended was that Subdiv AB provide comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule.
Particular 5.2(b) of Mr Mitchell’s submissions contends that the Tribunal considered the applicant’s statement provided after the hearing and made the following finding (CB 111):
Ultimately, the Applicant’s post-hearing submission did not address the serious problems in her evidence that were put to her in the course of the hearing.
Mr Mitchell submits that s.430(1)(c) of the Act requires the Tribunal to set out its findings on questions of fact which it considers material to its decision and the reasons for reaching that decision: Minister for Immigration v Yusuf (2001) 206 CLR 323 at [68]. The Tribunal is not obliged to make findings as to whether it accepts or rejects each allegation made in the course of evidence: Tran v Minister for Immigration [2002] FCA 1522 at [30]; Davis v Minister for Immigration [2004] FCA 686 at [35]. Mr Mitchell submits that in this particular case, the Tribunal made adverse credibility findings that subsumed the applicant’s contentions: Applicant WAEE v Minister for Immigration [2003] FCAFC 184 at [47]. Mr Mitchell submits that the material submitted by the applicant after the Tribunal hearing was considered and the Tribunal made general findings in respect of that material.
Particular 5.2(c) of Mr Mitchell’s submissions contends that his previous submission in respect of s.430(1)(c) of the Act also applies to this particular. The applicant’s claim and integers of claim were considered by the Tribunal, which made its decision based on the credibility of the applicant and gave its reasons for doing so. The Tribunal is only obliged to set out its findings on those questions of fact which it considers to be material to the decision made and the reasons for reaching that decision. I accept the submission there is no error in the approach taken by the Tribunal.
Particular 5.2(d) of Mr Mitchell’s submissions is that the Tribunal was not obliged to obtain professional opinion from independent bodies regarding the documents provided by the applicant: ss.420 and 424 of the Act.
Particular 5.2(e) of Mr Mitchell’s submissions contends that the UNHCR Handbook is a guide only and has no force in Australian law. Even if it were established that the Tribunal failed to follow procedures set out in that handbook, does not give rise to any legal transgression or an error of law: WACW v Minister for Immigration [2002] FCAFC 155 at [17]; Chan v Minister for Immigration (1989) 169 CLR 379 at 392; Applicant A v Minister for Immigration [1997] 190 CLR 225 at 302.
Particular 5.2(f) of Mr Mitchell’s submissions contends that the Court does has no jurisdiction to examine the evidence before the Tribunal except to the extent that it may show jurisdictional error: s.474 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [78].
Prior to the commencement of this hearing, Mr Mitchell advised the Court that there was new authority which was particularly relevant to an argument in this matter. The decision, SZHIB v Minister for Immigration [2006] FCA 611 (“SZHIB”), had been made on 8 May 2006 but as at this scheduled hearing was not yet published. At the commencement of the hearing, I indicated that I believed that the hearing should proceed as scheduled; however, I proposed to grant the parties leave to file supplementary submissions when SZHIB was published, which I did on 19 May 2006. At the conclusion of oral submissions, both parties were granted leave to file supplementary submissions, subject to the availability of the published reasons of His Honour Young J in the decision of SZHIB.
On 1 June 2006, the applicant filed a document entitled, ‘Applicant’s Submissions’ which appears to be in response to the leave granted on 19 May. These submissions do not appear to address the decision of SZHIB, but again canvass arguments in relation to procedural fairness, merits review and an alleged breach of s.424A.
On 30 June 2006, Mr Mitchell filed supplementary submissions in the Court. The submissions raise the issue of ‘adoption through republication’ in the context of s.424A(1) of the Act. Mr Mitchell submits that the Tribunal made a number of findings of inconsistency between the applicant’s oral testimony at the Tribunal hearing and her written protection visa application and review application. The issue which arises is whether the Tribunal decision was in part based on information that was not in the applicant’s review application and that may therefore enliven s.424A of the Act: SZEEU v Minister for Immigration [2006] FCAFC 2.
Mr Mitchell submits that information from a protection visa application, which is republished by an applicant in a review application, falls within the exception in s.424A(3)(b) of the Act. Republication occurred when the applicant’s counsel relied expressly on the terms of the protection visa application by stating that the details of the applicant’s claim were recorded within that application as well as his earlier statements: Applicant M55 v Minister for Immigration [2005] FCA 31 at [25] per Gray J. Republication also occurred when the applicant included a statutory declaration in his application for review that consisted of a critical examination of the reasons given by the delegate, in the course of which the applicant referred several times to his original claims: SZDMJ v Minister for Immigration [2005] FCA 1034 at [5]-[6] per Gyles J. In VUAV v Minister for Immigration [2005] FCA 1271 at [13], Merkel J found that republication occurred when that applicant’s review application contained the statement, “Please refer to my previous statement for further information”. That statement was recorded in his application for a protection visa. In SZHIB v Minister for Immigration [2006] FCA 611 at [16], Young J found that republication had occurred when that applicant’s application for review was accompanied by a letter in which the applicant stated:
i)He did not think his claim had been dealt with fairly and carefully by the delegate of the Minister;
ii)It is difficult to believe that the delegate of the Minister had carefully considered his claim having regard to the fact that he had provided those items in detail; and
iii)He did not think that his claim was carefully considered by the delegate.
At the Tribunal hearing a number of inconsistencies, contradictions and implausibilities in the applicant’s evidence was put to the applicant. The Tribunal made adverse credibility findings in respect of the applicant’s claim based on the inconsistency of the applicant’s evidence.
Mr Mitchell submits that in the present case, the applicant has republished information contained in her protection visa application, in her application for review. In support of this submission, Mr Mitchell identifies and relies upon specific areas of republication. First, the applicant has applied her claims contained in her statutory declaration dated 19 January 2003 (attached to her protection visa application) and has replicated the claims contained in a letter to the Department dated 22 March 2003 in her statutory declaration dated 2 June 2003 (attached to her application for review): compare CB 34 with CB 55 and compare CB 25-28 with CB 81-83. Mr Mitchell submits that in the applicant’s written evidence, most if not all of the material claimed in her protection visa application are repeated in the same or in substantially similar terms in the application for review. The Tribunal’s conclusions regarding the inconsistencies between her evidence before the hearing and her written application also reflect this. Specifically, the Tribunal referred to the inconsistencies between the applicant’s old testimony at the Tribunal hearing and her written evidence provided to the Department and at the Tribunal: see CB 115.1and 115.3.
Mr Mitchell submits that the identical or substantially similar nature between the written claims made in the applicant’s protection visa application and her application for review indicates that the claims had been republished, form part of the applicant’s application for review and therefore fall within the terms of s.424A(3)(b) of the Act.
Secondly, the applicant in a statutory declaration, invited the Tribunal to refer to the contents of the protection visa application before the delegate.(CB 52.4) This statutory declaration requests review of the delegate’s decision:
I have carefully considered the decision given by Mr Bruce O’Brien, a Delegate of the Minister for Immigration and multicultural and Indigenous Affairs, to refuse my application for a Protection visa. I have found that it is very and very difficult for me to accept such a refusal decision because I believe to be a person to whom Australia has protection obligations under the United Nations Refugees Convention as amended by Refugee Protocol.
…
I sincerely hope that my application could be carefully reviewed by the Refugee Review Tribunal.
Mr Mitchell submits that this fact situation is similar to that in SZHIB, where the applicant’s application for review was accompanied by a letter which claimed that the delegate had not considered the applicant’s claim: SZHIB at [8].
In the circumstances, I am compelled to infer that the applicant adopted the contents of her earlier application, the subject of the delegate’s decision, in her application for review and republished the contents of that application for the purposes of her application for review.
Conclusion
The applicant appeared at the hearing as a self-represented litigant, which places an obligation on this Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. Mr Mitchell for the respondents assisted the Court with written submissions which were supplemented by further submissions in respect of a recent Federal Court decision that directly related to this application. It was apparent that the applicant has been assisted by a third party who does not comprehend the arguments submitted or the operation of these proceedings. I am satisfied that none of the grounds identified can be sustained. Neither is it apparent that any other ground of review exists that suggests the Tribunal made a jurisdictional error in its decision-making process. 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 thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 24 July 2006
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