SZDZT v Minister for Immigration
[2007] FMCA 1143
•12 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDZT v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1143 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.414, 422, 422A, 424A |
| Minister for Immigration & Multicultural & Indigenous Affairs v Gia [2001] HCA 17 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 NACB v Minister for Immigration & Multicultural Affairs [2003] FCAFC 235 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 SZEPZ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 107 SZGNY v Minister for Immigration & Citizenship [2006] FMCA1142 SZHUI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1042 VFAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 |
| Applicant: | SZDZT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3094 of 2006 |
| Judgment of: | Barnes FM |
| Hearing date: | 12 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 12 July 2007 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr S Free |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The name of the first respondent is amended to ‘Minister for Immigration and Citizenship’.
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3094 of 2006
| SZDZT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 26 September 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant, a citizen of the People’s Republic of China, arrived in Australia in February 2004 and applied for a protection visa. The application was refused and the applicant sought review by the Refugee Review Tribunal. He attended an interview and hearing before the Tribunal as first constituted on 2 June 2004. The Tribunal affirmed the decision of the delegate.
The applicant sought judicial review in this Court. On appeal the Full Court of the Federal Court, with the consent of the parties, remitted the matter to the Tribunal for reconsideration. The Tribunal as reconstituted wrote to the applicant on 3 August 2006 inviting him to comment on specified adverse information pursuant to s.424A of the Migration Act 1958 (Cth). In particular the letter drew attention to specified inconsistencies in information that the application had provided in a statement in support of his original protection visa application and oral evidence given to the Tribunal at the time of the first hearing. The applicant was invited to comment at an interview at the beginning of the hearing before the second Tribunal.
The applicant attended the second Tribunal hearing and interview and provided some additional information to the Tribunal. In its reasons for decision, the Tribunal affirmed the decision of the delegate. In essence it found that the applicant had not been truthful in his evidence. It did not believe the claims that he made.
The Tribunal referred to variations in the applicant’s claims at various stages of the determination process. The applicant had initially claimed to have a well-founded fear of persecution in the People’s Republic of China because he had been arrested for possessing Falun Gong books in 1998 or (as he later claimed) in 1999. He also claimed to have experienced certain problems with the authorities because of his claimed interest in Falun Gong and also because he had been caught in possession of Falun Gong literature. The Tribunal set out in some detail the claims that the applicant had made at various times beginning in his original protection visa application to the Tribunal as first constituted.
It set out its request for comment on inconsistencies in the prior claims, set out the applicant’s comments in the interview and his attempts to explain the inconsistencies, in particular by reference to a claim that he had been hit on the head by Chinese authorities and that his memory was not good. The Tribunal also addressed the applicant’s further clarification and elaboration on his claims at the hearing on 30 August 2006 which included further variations in his claims.
The Tribunal accepted that the applicant was a citizen of the People’s Republic of China but found that he had been unable to provide a coherent and consistent account of his activities or past experiences in his application to the Department and the evidence he had provided to the Tribunal over time. In particular, it found that he had been unable to provide the same evidence as to when alleged harms had occurred to him in the past, having variously claimed arrest and harm in 2002, 1998 and adding later claims of either a fine or arrest in 1999. The applicant had also provided to the Tribunal at the interview and hearing in 2006 a statement from a claimed witness indicating that he had been arrested in 1999 but claimed to be unable to recall events except to know that they occurred prior to December 1999 because he had a bad memory from being hit on the head by the police.
The Tribunal detailed a pattern of changed claims by the applicant about when he was arrested. It found the presentation of a late document from China to be a response to the discussion at the earlier hearing that despite his claims that he had been arrested in 1998, Falun Gong was not banned until 1999. The Tribunal did not believe that the applicant was ever detained in China. It also referred to evidence including photographs of a damaged home in China. It found that material not sufficiently probative to overcome the Tribunal’s concerns about the claims made earlier by the applicant.
It found that, as with the material regarding past harms, the applicant’s claims regarding Falun Gong activity in which he claimed to have engaged had varied enormously over time: from a claim that he was a Falun Gong practitioner to a claim that he was not in fact a practitioner but had a growing interest in Falun Gong.
The Tribunal found that the extraordinary nature of the inconsistencies in the applicant’s claims did not arise from any memory defect on the part of the applicant. It had regard to the fact that over time he had not claimed any real difficulty in recalling events, except recently. It found that he had confidently given evidence of events that he then claimed did not take place. The Tribunal rejected the applicant’s explanation that the inconsistencies arose from the memory defect caused by head injury and found that the evidence demonstrated a pattern of the applicant changing his claims when perceived difficulties were encountered with his evidence. It found that this indicated that he was fabricating his claims.
Having regard to variations which the Tribunal detailed, the Tribunal concluded:
Taken overall, the Tribunal does not believe the applicant ever held any Falun Gong literature in China, nor that he was ever detained by authorities in China. The Tribunal does not believe that he has ever experienced any harm as a result of any interest in Falun Gong. The Tribunal does not believe that the applicant has held any association with Falun Gong, in fact, or in the minds of the security authorities in China nor that they have any interest in him in this respect.
Hence the Tribunal did not believe the applicant would face harm for any Convention reason in the foreseeable future should he return to China. The Tribunal concluded that the applicant was not owed protection obligations by Australia. It affirmed the decision not to grant him a protection visa.
On 24 October 2006 the applicant sought review in this Court of the Tribunal decision. He filed an amended application on 23 April 2007 on which he seeks to rely.
Before considering the grounds in the amended application I note that at the start of the hearing the applicant was asked if he had filed written submissions as there were none on the file and he suggested that we would have to ask his agent. He was given the opportunity to make oral submissions. He claimed that his migration agent had put forward all that he wanted to say. When asked to elaborate on the nature of the misunderstanding of his claims alleged in the amended application the applicant reiterated that we should ask the migration agent and that he did not wish to say any more.
While not expressed in those terms, I took these suggestions to be seeking an adjournment. Insofar as this was the case it was opposed by the first respondent on the basis that the suggestion that we should ask the migration agent was not a proper basis for an adjournment application.
A migration agent would, of course, not be able to appear without the leave of the Court. There is nothing in the material in the Court file to indicate that the applicant considered himself represented by someone else. There has been no application to the Court by any migration agent for leave to appear in this matter. No written submissions have been filed. The applicant was given the opportunity to make such oral submissions as he wished to make on his own behalf.
There is nothing in the material before the Court or in the applicant’s suggestion that an unnamed migration agent should be contacted to indicate that it is in the interests of justice or the parties that the Court should refrain from dealing with this matter today. When offered a final opportunity to make submissions, the applicant indicated that he did not wish to say anything further and that all his claims had been put forward a long time ago. The circumstances are not such as to warrant an adjournment. I have, however, considered the grounds in the amended application and all the material before the Court as the applicant is self-represented.
The first ground in the amended application is that the Tribunal was biased against the applicant and failed to consider his claims and that the Tribunal’s decision was made based on “assumption of the officer, not evidence”.
As submitted for the first respondent, this ground contains a number of overlapping allegations. First, there is an allegation of bias. A finding of actual bias is, of course, a grave finding and requires an evidentiary basis. In this case the only relevant material before the Court as to the conduct of the hearing consists of the decision of the Tribunal. There is nothing in the decision (or in the Tribunal correspondence with the applicant) to provide any factual foundation for a finding of actual or indeed apprehended bias on the part of the decision maker. See the MIMIA v Gia [2001] HCA 17, SCAA v MIMIA [2002] FCA 668 and in relation to apprehended bias, Re Refugee Review Tribunal; Ex parte H [2001] HCA 28.
The fact that the Tribunal did not believe the applicant’s claims does not establish either actual or apprehended bias. Credibility is a matter for the decision-maker. In this case the Tribunal findings were open to it on the material before it for the reasons that it gave. There is nothing in the material before the Court to suggest any pre-judgment or to give rise to a reasonable apprehension that the Tribunal may not have brought an impartial mind to the resolution of the question to be decided. It is well established that no inference of bias or pre-judgment can be drawn from the mere fact that the Tribunal has made adverse findings: VFAB of 2002 v MIMIA (2003) 131 FCR 102.
I have also had regard to the fact this was a second Tribunal decision and that in the course of its decision the Tribunal had regard to the evidence provided by the applicant at the first Tribunal hearing. As the Full Court of the Federal Court stated in SZEPZ v MIMIA [2006] FCAFC 107, in such circumstances, although the Tribunal decision has been set aside, the review is the one review and the material before the first Tribunal hearing remains properly before the Tribunal as part of the same review. As the Court stated at [39]:
Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under section 414, it has a duty to perform that particular review. An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made.
Such material includes the evidence given by the applicant at the first Tribunal hearing (also see SZGNY v MIAC [2006] FMCA1142 and ss.422 and 422A of the Migration Act 1958 (Cth)).
I note that this is not a case in which there is an issue in relation to the application of section 424A of the Migration Act 1958. The Tribunal sought the applicant’s comments pursuant to section 424A in relation to the first Tribunal hearing, referring not only to the first Tribunal’s account of that evidence but also to the tape recording of the earlier interview and hearing and the particular evidence given as well as to information given in the protection visa application. The Tribunal’s reference to such information does not establish a jurisdictional error either in the sense contended for in ground 1 of the application or indeed in any other way as discussed further below.
Ground 1 also contains an allegation that the Tribunal failed to consider the applicant’s claims. However it is apparent from the Tribunal’s reasons for decision that it did consider the applicant’s claims, albeit that it did not accept the credibility of his claims. The Tribunal’s reasons for decision set out at some length the various and varying claims made by the applicant and considered those claims in light of the available evidence and the applicant’s explanation for variations in his evidence. As indicated above, the Tribunal finding in relation to credibility was open to the Tribunal on the material before it. Insofar as the applicant takes issue with the Tribunal’s findings, he seeks merits review which is not available in this Court.
The final aspect of ground 1 is that the decision was made based on assumption of the officer, not evidence. However the Tribunal set out at some length its reasoning in relation to an assessment of the applicant’s credibility. There is no basis for such a claim, let alone a claim constituting jurisdictional error in that respect.
The second ground relied on is that the Tribunal’s satisfaction that the applicant was not a refugee was not based on a rational and logical foundation. The Tribunal is said to have misunderstood the applicant’s claims for his application and made a decision based on this. It is also contended that the Tribunal did not refer to the right information for consideration of the application.
There are no particulars in relation to this ground. The applicant was unable to assist the Court with the manner in which it was suggested that the Tribunal misunderstood his claims. There is nothing in the material before the Court to suggest that the Tribunal did in fact misunderstand the applicant’s claims in a manner constituting jurisdictional error. It was for the Tribunal to determine whether it accepted the applicant’s claims. The fact that it did not accept the applicant’s claims does not establish jurisdictional error.
As to the unparticularised claim that the decision was not based on a rational and logical foundation, again there is no factual support for such an allegation, the credibility finding being open to the Tribunal on the evidence before it. In these circumstances it is not necessary to consider the extent to which, if the Tribunal had adopted illogical reasoning, that would give rise to a jurisdictional error (but see NACB v MIMA [2003] FCAFC 235 at 30 and VWST v MIMIA [2004] FCAFC 286 at 18).
Ground 3 of the amended application is that the Tribunal relied upon irrelevant material and that the country information relied upon by the Tribunal was out of date.
It is not clear whether the claim that the Tribunal relied upon irrelevant material is confined to a reference to country information referred to in the Tribunal reasons for decision or is intended to be more general. In any event there is no factual basis for such a claim in either sense. Insofar as it is intended to suggest that the Tribunal should have engaged in some further inquiry, the complaint involves a misconception as to the role of the Tribunal. Its obligation is to decide on the basis of the material before it whether the applicant is a person to whom Australia owes protection obligations. There is nothing in the decision or the material before the Court to suggest that there was further relevant material available to the Tribunal which it failed to take into account in a manner constituting jurisdictional error. The Tribunal is not under an obligation to make further inquiries to address shortcomings in the application (MIMIA v VSAF of 2003 [2005] FCAFC 73). There is nothing in the material before the Court to suggest that the applicant sought or that the Tribunal undertook to make any further inquiries.
Insofar as this ground refers to country information, the weight to be given to particular items of country information is a matter for the Tribunal. In any event, in this case the Tribunal decision turned essentially on the Tribunal’s rejection of the applicant’s credibility.
The written submissions for the first respondent addressed not only the grounds relied on in the amended application but also whether there were any jurisdictional errors otherwise apparent in the Tribunal decision. I agree that no jurisdictional errors are apparent in the Tribunal decision or procedures.
In particular, the Tribunal invited the applicant to comment on adverse information pursuant to s.424A of the Migration Act 1958, drawing his attention to information that he had provided to the Tribunal at the time of the first Tribunal hearing (which in any event would be within s.424A(3)(b) – see SZHUI v MIMIA [2006] FMCA 1042 at [63]) and also to particulars of claims made in support of his protection visa application, in particular in relation to an alleged arrest and detention in 2002, on the basis that inconsistency between that information and subsequent claims indicated that the applicant was not giving a truthful account of his circumstances.
In these circumstances it is not necessary to determine whether such inconsistency is in fact information to which s.424A applies in light of the decision of the High Court in SZBYR v MIAC [2007] HCA 26. There is nothing in the material before the Court to establish any failure by the Tribunal to comply with s.424A or with any other applicable procedures under the Migration Act.
As no jurisdictional error is apparent the application must be dismissed. The applicant has been unsuccessful and the first respondent seeks costs in the sum of $4,500. As the applicant has been unsuccessful he should meet the costs of the first respondent. I consider that this amount is appropriate in light of the nature of this and other similar matters.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 20 July 2007
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