SZDZT v Minister for Immigration
[2005] FMCA 1311
•24 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDZT v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1311 |
| MIGRATION – RRT decision – Chinese person fearing persecution for Falun Gong activities – found not to be credible witness – Tribunal’s concerns about involvement in migration scam – whether information properly put to applicant – whether apprehension of bias – no jurisdictional error found. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 424A(1), 424B, 474(1), 483A, Pt.8
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471
VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158
| Applicant: | SZDZT |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2217 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 24 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 24 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr J Smith |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The Tribunal be included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,250.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2217 of 2004
| SZDZT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 2 June 2004 and handed down on 29 June 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decided whether the applicant qualifies for a protection visa or for any other permission to stay in Australia.
The present applicant arrived in Australia in February 2004 on a one month temporary business visa. On 19 March 2004 he was assisted by a migration agent, Mr Wu, to make an application for a protection visa. A statement attached to the application gave the following reasons for leaving the country of his nationality, China:
I am a “Falungong” practitioner. I participated in “Falungong” activities in China and I have been practising “Falungong” in Australia. I started to practice “Falungong” in 1998. In 2002, when I was practicing “Falungong”, local police came in and arrested me; I was detained for one week. During this one week I was beaten and forced to disclose other members’ locations. During the time when I was in hospital, I escaped and I had to give up my business and hide at my cousin’s home before I came to Australia recently. …
The applicant said that while he was hiding at his cousin’s home he could not visit his wife and son, but could only see them secretly during the two years, and that he lost his business. He said:
I can not return to China, I will be persecuted there.
No more details were given, and no evidence in support of his claims was forwarded to the Department. A delegate refused the visa application on 29 March 2004 and the applicant appealed to the Refugee Review Tribunal on 16 April 2004. The application was prepared by Mr Wu, who was appointed as the applicant’s agent to act on his behalf. The application to the Tribunal did not attach any more detailed information nor any evidence.
The applicant attended a hearing by the Tribunal on 2 June 2004. The transcript of the hearing is not in evidence before me, but I have no reason to doubt the Tribunal’s account in its reasons. It said that the applicant gave a markedly different account of his experiences in China:
In relation to his claims he claimed that he feared return to China as in July 1998 he had been sitting with two friends having breakfast at the harbour side when two plain clothes policemen walked by and noticed two Falun Gong books on the table. He claims that he and the others were arrested by the police and held for a week being given only two meals a day and allowed to wash every five days. He was transferred to another place and held for a month. He was fined 5800 RMB. After being released he was not allowed to collect and treat seafood. He was asked if apart from this incident he had ever been detained by the authorities in China. He said that this was the only incident (he later added that he had also been fined in 1999). He claimed that he had to change address as if he didn’t he would not have been able to obtain a passport. It was put to the applicant that the story being told at hearing was nothing like the story as submitted through his adviser and that the Tribunal was concerned as to the veracity of his claims. He said that he realised they were different but did not want to give all the detail to his adviser as “I didn’t want to make it serious … I didn’t want to tell in detail … I didn’t want to exaggerate”. He claims that after the incident in 1998 he lived the life of a vagabond leaving his home in March 1999.
The applicant also told the Tribunal, after revealing very little knowledge of Falun Gong practices, that “… in fact he was not [a] member or practitioner but did some exercises on the lawn every morning”. According to the Tribunal:
It was put to him that I considered that his story was entirely fabricated. He said “yes”.
In view of what the Tribunal was told at the hearing, it is not surprising that under the heading “Findings and Reasons” the Tribunal said:
I have serious concerns as to his credibility and do not accept any of his claims as being true. I note that these matters were discussed at length with him at hearing.
The Tribunal then referred to the matters which I have already recounted, and concluded that the applicant had lied initially at the hearing, that his evidence was “highly unreliable”, and that:
He was clearly making up matters as he went, was not truthful and was misleading the Tribunal.
The Tribunal said at the end of its statement of reasons:
I consider that the applicant has come to Australia not for any protection needs but to work. It is apparent from what he has said at hearing that this is his main concern. It is also apparent that he was assisted in his travel and decision to come to Australia by persons in China. He claims that it was these persons who gave him the name of his adviser Mr. Simon Wu.
I am concerned that the person who travelled with the applicant and sat next to him also has the same adviser, and that this person is listed as being at the same residential address, has the same mobile phone number, and has made her applications to the Department and the Tribunal on the same days as the applicant.
Overall I find that the applicant was not a credible witness. I find that he does not have a well founded fear of persecution for reasons of a Convention ground.
The applicant’s application to this Court and his amended application raise essentially one ground of review which is:
I believe that the office[r] made jurisdiction mistakes when considering my application; he had bias against me when considering my application. ... because he was more interested in investigating migration scam and migration adviser than considering protection visa. …
This is a reference to the Tribunal’s treatment of information to which it referred in the passage I have extracted above. The Tribunal’s handling of that information in the course of the hearing was described by it earlier in its reasons:
It is noted that information available to the Tribunal indicates that the applicant resides at the same address as three other applicants all of whom have the same adviser. One of those applicants also arrived in Australia on the same day and on the same flight as the applicant. That person also has the same mobile phone number as the applicant and their applications to the Department and to the Tribunal and the applications of the applicant in the matter before me were made on the same days. The file numbers of concern are: N04/49043 (same address and same flight etc); N04/49091 and N04/49092 (same address and same adviser).
At hearing before the Tribunal the applicant was assisted by an interpreter. He said that the claims in his original application were his own and the adviser had read them back to him. He claimed to have travelled to Australia by himself, knew no one else on the airplane, and lived with a friend and his wife and their two children. He said that he came to know of Mr. Simon WU his migration agent when friends in China had given him Mr. WU’s name.
It was put to the applicant that the Tribunal had information which indicates that he resides at the same address as three other applicants all of whom have the same adviser – Mr. Wu. One of those applicants also arrived in Australia on the same day and on the same flight [as] him. That person also has the same mobile phone number as his and their applications to the Department and to the Tribunal were made on the same days. It was put to him that the Tribunal was concerned that his claims may not be true and that he was part of a migration scam. He said that he knew nothing of these matters. He was given several opportunities to comment on this information and again repeated that he knew nothing about this.
The Tribunal also said at the end of its description of the hearing:
The Tribunal held an interview pursuant to section 424A of the Act after the hearing. The applicant was provided with a written notice of the interview. This detailed the information concerning other applicants with the same address who had the same adviser and also that a person was on the same plane as him and had the same adviser, same address, same phone number and other detail. He said that he would like to add further information than that already told at hearing. He said that he did know [the] woman who was on the plane with him and that she had sat next to him. He said “her name is Chan that is all I know … I sat next to her but don’t know her”. Their tickets had been arranged by the “airline”.
A copy of the written invitation to comment is in the papers before me and in form, in my view, it complies with the requirements of ss.424A and 424B. The relevant regulations concerning the giving of such invitations and the specification that comments are to be given at an interview, appear to have been complied with on a literal reading, although it may be necessary to read them with an implied requirement that the opportunity to comment be a real opportunity in terms of the timing of the interview for there to be proper compliance with s.424A.
However, in the present case I do not need to consider those issues since, in my view, the manner in which the Tribunal ultimately made use of the information that it put to the applicant, as shown in the extract I have taken set out above, does not show the Tribunal using the information as “the reason, or a part of the reason, for affirming the decision that is under review” within s.424A(1) (see VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [29‑33], and VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [50‑54]).
I consider that the essential and overwhelming reason for the Tribunal affirming the delegate’s decision was its view about the applicant’s credibility in relation to his claims for refugee status, and that its reference in its concluding paragraphs to the applicant’s relationship with his adviser and other applicants was only in the nature of comment. I do not think those comments were “an integral part of the Tribunal’s reasons” within the authorities cited above.
The applicant’s argument that the Tribunal’s handling of this information revealed bias, in my view, has no substance on the evidence before me. It does not, in my view, raise any concern about actual bias. Nor, in my opinion, on the evidence before me might “a fair‑minded lay observer reasonably apprehend that the [Tribunal] might not bring an impartial mind to the resolution of the question to be decided” (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27] and [28]).
In my opinion, the Tribunal’s account of how it raised the matter with the applicant shows no more than that it performed its duty to raise with the applicant information of which it was aware relevant to the applicant’s credibility and which might ultimately affect its reasoning. As I have indicated, the manner in which the Tribunal referred to that information in its reasoning reveals an appropriate and balanced use of the information. This would have satisfied a lay observer that the Tribunal had not become distracted by its concerns about the applicant’s migration adviser, and would not give rise to a reasonable apprehension of an unbiased mind.
For the above reasons I do not consider that the applicant has made out a case that the Tribunal’s decision was affected by any jurisdictional error. The decision was therefore a privative clause decision within s.474(1) for which relief is precluded, and I must dismiss the application.
RECORDED : NOT TRANSCRIBED
I order the applicant to pay the first respondent’s costs in the sum of $4,250.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 21 September 2005
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