SZEBW v Minister for Immigration
[2004] FMCA 977
•22 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEBW v MINISTER FOR IMMIGRATION | [2004] FMCA 977 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.422B, 424A, 441A, 474
Judiciary Act 1903 (Cth), s.39B
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1994) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188
WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZEBW |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2388 of 2004 |
| Delivered on: | 22 December 2004 |
| Delivered at: | Sydney |
| Hearing date: | 24 November 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Solicitors for the Respondent: | Mr L Leerdam of Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the Minister’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2388 of 2004
| SZEBW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 2 June 2004 and handed down on 28 June 2004, affirming a decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“the delegate”) made on 24 March 2003 to refuse to grant the applicant a protection visa.
The applicant, who claimed to be a citizen of the People’s Republic of China, arrived in Australia on 24 November 2002. On 17 December 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”). On
24 March 2003 the delegate refused to grant a protection visa and on 14 April 2003 the applicant applied for a review of that decision.
Background
The applicant was born on 9 February 1964. He is an ethnic Chinese male, married with a wife and a fourteen year old son living in China. The applicant gave his occupation as company director of his own building and decoration business. The applicant claimed that in February 2000 he gave employment to a Mr Ma who was a Falun Gong practitioner. On 24 April 2000 the police took Mr Ma into detention for three days. Mr Ma returned with a damaged arm but with his faith in Falun Gong intact. Mr Ma gave the applicant a book written by the Falun Daffa master, Hong Zhi Li, and taught him the five sets of Falun Gong exercises. The applicant had great sympathy for the Falun Gong practitioners who had been imprisoned and tortured by the corrupt Chinese authorities (Court Book p.72) (“CB”).
In early July 2000 the applicant stated that he assisted Mr Ma and his friend to prepare propaganda material in the applicant’s company office, protesting to the treatment of the Falun Gong adherents. On 18 July 2000, Mr Ma and his friend were taken into custody for a one month “political study” course by the Public Security Bureau (“the PSB”). Consequently, the applicant was the only person available to secretly distribute the Falun Gong material to factories, shops, schools and government offices (CB p.73).
On his return from his political studies, Mr Ma and the applicant organised a group which produced thousands of Falun Gong brochures which were distributed throughout Shenyang City and Laoling Province over a two year period. The PSB continued to cause difficulties for Mr Ma over this period but the distribution activities were never discovered because no one knew that the applicant was the main organiser involved (CB p.73).
In September 2002 the applicant found that his company was being embezzled by a female member of staff. When the applicant threatened to report her to the PSB she replied that if he did so, she would report him for his Falun Gong activities. Subsequently the applicant decided to promote the employee to deputy general manager to buy her silence while he planned his departure for Australia on 23 November 2003 in secret. The applicant claimed that following his departure, the embezzler reported his departure to the PSB and his activities in support of the Falun Gong. As a result, he claimed he was now on a wanted list as a “major criminal” and his wife, who is still in China, has been interrogated, his company confiscated and his home searched. The applicant fears that if he returned to China he would be persecuted because of his Falun Gong activities (CB p.73).
The Tribunal’s findings and reasons
The Tribunal handed down its decision on 28 June 2004 (CB pp.69-77). The Tribunal affirmed the decision to refuse the protection visa. It accepted that the applicant was a citizen of the People’s Republic of China, and assessed his claims against that country. The applicant claimed to fear persecution from Chinese authorities due to his association with the Falun Gong movement. He claimed that over a period of two years between 2000 and 2002 he had assisted in the production and distribution of Falun Gong literature in the Laoling Province and within the city of Shenyang.
The applicant stated that his company had been confiscated after the authorities were notified of his involvement with the Falun Gong. At the hearing he corrected this saying that the company assets had been frozen. In support of his claim, the applicant provided a copy of an announcement from Chinese authorities. The Tribunal did not accept the announcement as genuine, noting that the applicant had already left China when the announcement was allegedly made. It did not give any other reason for its finding that the announcement was not genuine.
The Tribunal found that the applicant was not, and had never been, an active participant in the Falun Gong movement. It based these findings on the fact that the applicant was unable to explain the basic fundamentals of the Falun Gong philosophy he claimed to follow (CB p.75). The Tribunal also noted that the applicant was unable to demonstrate the five sets of exercises he claimed to have been taught by his employee, Mr Ma, while in China. The applicant admitted at the hearing that he had not maintained his association with the Falun Gong group in Australia.
The Tribunal found that the applicant would not be considered a person of any significance because he had no difficulty obtaining a passport (CB p.76). Country information suggests that it is impossible for a dissident to exit China on a passport issued in their own name (CB p.76). The Tribunal considered the delay between obtaining a passport and departing China which was a period of six months and the applicant’s inability to provide any explanation at the hearing when questioned on the issue, suggested the applicant was not a person who truly feared persecution. (CB p.77). The Tribunal noted that the applicant was unable to produce any documentary evidence to suggest he was considered a major criminal by the Chinese authorities. It was also noted that on his visa application, the applicant claimed he had never been convicted of a crime or charged with any offence that was currently awaiting legal action.
The application for review of the Tribunal’s decision
On 28 July 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 23 August 2004 the applicant attended a directions hearing and consented to Short Minutes of Order requiring him to file and serve any amended application by 25 October 2004. The applicant complied with this order and filed an amended application which listed the following grounds:
1.”There was an error of law in the Tribunal’s decision constituting a jurisdictional error.
2.There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
Particulars
1.The Tribunal failed to use proper information and failed to apply proper laws to assess and consider my claims.
2.One of the main reasons on which the Tribunal relied to affirm the refusal decision by the Immigration Department was that I was able to leave my country with a passport, using my own name. Based on relevant independent country information, the Tribunal therefore believed that I have not been of the interest of the PRC authorities.
3.The Tribunal, however, failed to consider the fact, carefully, that so-called independent country information regarding to the procedure of departing from China was absolutely irrelevant to my claims, because:-
a.I had no difficulty obtaining a passport, because my so-called “antigovernment” activities were not discovered at that time;
b.It is owing to my business being confiscated by the Chinese government AFTER my departure from my home country that I must have a real chance of being persecuted on my return, because my situated has been greatly CHANGED.
4.The Tribunal failed to carefully consider actual situation in China. For example,
a.It is particularly difficult for me to get documentary evidences in support of my claims, because Chinese government strictly restricts those sensitive political or religious documents being leaked to the overseas, in order to protect its so-called “open” politicise;
b.It is quite common that Chinese government normally must confiscate all the personal documents of the person who has been subjected to investigation by the Public Security Bureau (PSB).
5.The Tribunal failed to carefully consider the fact that a refugee applicant like me may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. As a matter of facts, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. It is obviously that the Tribunal failed to demonstrate its “good reasons to the contrary”.
6.The Tribunal failed to comply with his obligations under Section 424 of the Migration Act 1958. Particularly, the Tribunal failed to provide me a complete information, which has, in fact, been used as the reason, for affirming the unfair decision of the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”), and the Tribunal failed to clearly explain to me the information, he used in his decision, later on, will directly relating to my application.
7.The Tribunal, particularly, failed to ensure that I fully and completely understand the information that he would be used in his decision before and during and after my hearing before the Tribunal.
8.In conclusion, I never ever believe that the Tribunal has made a fair decision on my application.” (Errors included)
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Submissions
The applicant appeared self represented with the aid of a Mandarin interpreter. Although the applicant did not file any written submissions, when invited he proceeded to address the Court by his interpreter, drawing my attention to two documents which appeared in the Court Book (pp.58-59), together with an English translation (CB p.60). The translation revealed that this was an announcement issued by Yaming Local Police Station, Huanggu District, Shenyang City Public Security Bureau on 6 December 2002. The announcement states:
“[Applicant], the former legal representative and manager of Gooden Star Building & Decoration Materials Co. Ltd., has been suspected, taking advantage of his business activities, to participate in plan and organization of manufacturing, distributing a large quantity of illegal Falun Gong propaganda materials, which has made a very bad impression in the community. According to the decision of relevant official document of Shenyang City Public Security Bureau, all properties of Gooden Star Building & Decoration Materials Co. Ltd. must be sealed up from today, and also relevant departments have been instructed to further investigate [Applicant]’s anti-government activities.” (CB p.60)
The next issue raised by the applicant was that the Tribunal had breached the requirements under s.424A of the Act in that they had failed to provide the applicant certain information for him to comment and respond. This issue was raised by the applicant in his written submissions. However, no evidence or particularisation were provided to identify the documents to which the applicant referred.
The final submission was that the Tribunal breached s.441A. However, this claim is unclear as there are no evidence or particulars provided which identify material that the Tribunal allegedly failed to provide to the applicant.
The respondent was represented by Mr L Leerdam, Solicitor, who filed written submissions prior to the hearing. It was submitted that the Tribunal rejected the applicant’s claims on the basis that it did not find the applicant to be credible. Findings of adverse credibility, where such findings are reasonably open on the evidence before it, are properly the function of the decision maker and generally not susceptible to judicial review by the Courts: see Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham per McHugh J. The respondent submitted that it was reasonably open to the Tribunal to dismiss the applicant’s claims on the basis he lacked credibility.
It was submitted that the applicant could not explain or demonstrate any understanding of Falun Gong movements and basic precepts. In these circumstances, it was clearly open to the Tribunal to find that the applicant had never been involved with the Falun Gong movement in China. The Tribunal also found that the applicant could not show a continuing association with the movement in Australia. The respondent submitted that the Court should not interfere with the Tribunal’s findings on these issues of credibility.
It was submitted that the Tribunal did not accept that the statement purportedly issued by the PSB was genuine. The applicant appeared to be claiming that the Tribunal’s finding was a denial of natural justice. It was submitted that authorities suggested that the nature of any natural justice obligation that arose in circumstances such as these would depend on the degree to which the credibility of the applicant was in question. In WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs, the Tribunal was “not satisfied as to the genuineness of a document” outlining an applicant’s involvement in a student uprising. However, the applicant had not been discredited generally or otherwise found to be dishonest in the presentation of his claims so as to support the further conclusion that he was prepared to put fabricated documents before the Tribunal. Under those circumstances, to avoid a breach of natural justice, the Tribunal was obliged to inform the applicant of its belief so as to enable the applicant to make further enquiries (see [52] to [55]).
In WACO v Minister for Immigration & Multicultural & Indigenous Affairs, the Tribunal made clear to the applicant at the hearing of doubts it held about his credibility. In response, the applicant provided certain documents to the Tribunal after the hearing, which it rejected as fabrications. While acknowledging that the rejection of the documents based on the adverse view taken of an applicant’s credit did not involve an error of law (as per McHugh and Gummow JJ in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 at [49]), the Full Court found that the Tribunal had a duty to raise clearly with the applicant the critical issues on which his or her application might depend (at [42]) and that the failure to do so amounted to a breach of natural justice.
It was submitted that the Tribunal’s findings in relation to the applicant’s credibility were central to its decision to refuse a visa. Additionally, the Tribunal wrote to the applicant twice under s.424 seeking further information to support his claim (once seeking the original statement of the PSB). The applicant must have known from this correspondence that the Tribunal had severe doubts about the authenticity of the document. It was submitted, the applicant must have been aware of the ‘critical issues affecting his application’, and as a consequence, no natural justice issues arise.
It was noted by Mr Leerdam that of paragraph 1 of the particulars in the application, the applicant asserts that the Tribunal ‘did not well understand’ what happened to the applicant in China. Even where this amounted to an assertion of factual error by the Tribunal (which the respondent did not concede), the question that arose was whether and to what extent this constituted a failure to carry out its review function or otherwise amounted to a failure of jurisdiction amenable to the writ of certiorari and/or mandamus and prohibition.
It was submitted that the established proposition was that mere factual error by the Tribunal would not be a ground for judicial review unless it related to a jurisdictional fact or was a manifestation of some error of law, substantive or procedural, which constituted jurisdictional error and thereby vitiated the purported decision (see discussion in Minister for Immigration & Multicultural Affairs v Yusuf of jurisdictional error as a ground for review of the Tribunal’s decisions under the former Part 8 of the Act). It was submitted that an error of fact in the course of a decision was unlikely to be a jurisdictional error unless the fact was a jurisdictional fact:
“Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.” (Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen at 481 [36] per McHugh J.
It was submitted that in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2), the Full Court applied this standard in a matter where, because of the Tribunal’s error, it had failed to consider an unexpressed claim of want of effective State protection against persecution by a militant group (PLOTE). Nevertheless, the Court concluded at [68] that although the Tribunal’s adverse finding of credibility could have affected the outcome of the review, it did not constitute jurisdictional error but was merely an error of fact within jurisdiction. The findings of the trial judge (Tamberlin J), at first instance, which were upheld by the Full Court, were as follows:
“This statement in the delegate’s decision clearly indicates that the applicant’s claim was not detention and torture by the authorities, but by PLOTE. It was the decision of the delegate that was the subject of the review by the RRT and this statement as to the nature of the claim was before the RRT when considering the decision. Other material before the RRT did not specify clearly who detained and tortured the applicant. On the material I have referred to, other statements by the applicant and the relevant part of the transcript of the hearing before the RRT which was tendered in evidence, I am satisfied that there was an error by the RRT which could have affected the outcome because it bears directly on the question whether there were grounds, based on past persecution, for the applicant believing there is a real risk of persecution if returned.”
Reasons
The applicant in these proceedings was representing himself and in these circumstances the Court must independently consider whether any arguable case based on the material could have been made out: Yo Han Chung v University of Sydney & Ors.
The main reason for the Tribunal’s rejection of the applicant’s claim was the applicant’s credit. The submissions made by the respondent’s solicitor, Mr Leerdam, correctly identified this point and supported the Tribunal’s approach with relevant authorities. The Tribunal did not accept any of the substantive issues put forward by the applicant in support of his claim. The general lack of knowledge regarding the philosophy and practice of Falun Gong was inconsistent with the applicant’s claims that he feared persecution from the Chinese authorities because of his adherence to this movement.
In the application for review, the applicant cites two grounds. The first was that there was an error of law in the Tribunal’s decision which constituted jurisdictional error. That error was not identified in the particulars so I have assumed that the error was procedural in nature, as stated in ground 2. The Act, in Part 5, Division 4, sets out the criteria which must be observed by the Tribunal when conducting a review as stated in s.422B:
(1)This division is taken to be an exhaustive statement of the requirements of natural justice hearing rule in relation to the matters it deals with.
Before referring to particulars 6 and 7 of the application, which raise issues relevant to this Division, a fair reading of the Court Book indicates the Tribunal followed the procedures set out in the relevant sections of the Division, this in part is confirmed by the fact that the applicant attended the Tribunal on 18 November 2003 to give oral evidence. During that interview, the Tribunal put to the applicant various issues that were both provided by the applicant and obtained by the Tribunal from independent sources.
The specific complaint that the applicant raised in particular 6 was that the Tribunal failed to comply with the obligations under s.424 of the Act. The content of that particular would suggest that the applicant was probably referring to s.424A and not s.424. Regretfully, the particular failed to identify the material the Tribunal used in its decision which was not provided to the applicant. In the absence of any evidence of the applicant, it is not possible to identify the material in the Tribunal’s decision which was not disclosed to the applicant. An alternative approach to this particular, was that it was mentioned in the decision that the Tribunal sought further information from the applicant by serving him with a s.424 request for further information in support of his claims. The Tribunal indicated it gave the applicant additional time in order to satisfy this request, so I believe that approach can be eliminated from this review.
Particular 7 claimed that the Tribunal failed to ensure that the applicant fully and completely understood the information that was used by the decision maker to make the decision. Again this was not particularised and it was not possible to determine from the face of the decision what material this may be.
The applicant’s allegation in particular 3(b) that his business had been confiscated was put to the applicant during the Tribunal hearing and he indicated that this was not the case and the assets of the business had been frozen. When further questioned on this aspect, as to possible reasons why the Chinese government should take this action, the applicant failed to respond.
Conclusion
I agree with the respondent’s submissions that the predominant reason for the Tribunal’s rejection of the applicant’s claims was based on credit. The claims raised in the grounds for review do not readily disclose problems with the decision making process. The particulars supplied do not identify the errors in the decision making process but rather highlight issues where the applicant disagrees with the conclusions made by the Tribunal. I have not been able to identify any ground that the Tribunal has committed any jurisdictional error. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 22 December 2004
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