SZEKY v Minister for Immigration
[2005] FMCA 677
•31 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEKY v MINISTER FOR IMMIGRATION | [2005] FMCA 677 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 474
Federal Magistrates Court Rules 2001 (Cth), r.4.05(1)
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 (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171
Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703
| Applicant: | SZEKY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2871 of 2004 |
| Delivered on: | 31 May 2005 |
| Delivered at: | Sydney |
| Hearing date: | 16 May 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Solicitors for the Respondent: | Ms J Bautista of Sparke Helmore |
ORDERS
The application be dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2871 of 2004
| SZEKY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 20 September 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 29 July 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 30 April 2004 to refuse to grant the applicant a protection visa.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZEKY”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 26 March 2004. On 7 April 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-26) (“CB”). On
30 April 2004 the delegate refused to grant a protection visa (CB pp.27-40) and on 7 June 2004 the applicant lodged an application with the Tribunal for a review of the delegate’s decision (CB pp.45-48).
In a statutory declaration attached to his visa application (CB pp.23-26) and before the delegate (CB p.32), the applicant made various claims and statements. These were summarised in the Tribunal’s decision under the heading “Claims and Evidence” (CB pp.62-63) as follows:
·In China, the applicant was a police officer but due to his political opinions and activities, he had been the subject of an investigation. In China, the police are merely a tool for the Communist regime.
·In October 1989, he applied for transfer out of the criminal team to the traffic team as he could not ‘tolerate corruptive and autocratic system’. However, he remained a member of the Public Security Bureau (PSB) and had unwillingly witnessed the persecution of Falun Gong practitioners.
·One day in July 2003, a friend asked him to obtain a passport for a Falun Gong practitioner. Despite the risk involved, he formed a close relationship with a corrupt senior police officer who agreed to assist in obtaining passports for six Falun Gong practitioners. The officer wanted RMB 20,000 for each passport.
·On 23 October 2003, the applicant obtained the passports from the senior officer. He also got them visas for Thailand through a friend and ‘personally escorted them to go through the customer, and then assisted them arrive in Thailand early January 2004’. However, in March 2004, the Falun Gong practitioners were sent back to China.
·He faced danger in China because he had assisted the Falun Gong practitioners. He spent a large amount of money and bribed a friend in order to get a visa. He has been informed that the Falun Gong practitioners have been arrested. The senior police officer is under investigation.
·If he were to return to China, he would be severely punished.
The Tribunal’s findings and reasons
Ms J Bautista, Solicitor appearing for the respondent, filed written submissions prior to the hearing which contained the following summary of the Tribunal’s findings:
a)On 23 June 2004, the Tribunal invited the applicant to attend a hearing to give oral evidence and present oral arguments in support of his claims (CB pp.49-50). The applicant accepted that invitation and on 28 July 2004 he attended an oral hearing before the Tribunal that lasted for nearly two hours (CB pp.51-52).
b)On 19 August 2004, the Tribunal handed down its decision affirming the decision of the Delegate to refuse to grant the applicant a protection visa (CB p.58). The Tribunal made adverse findings of fact in respect to the claims made by the applicant, on the basis of its assessment of the applicant’s credibility. The Tribunal made its strong adverse credibility findings for the following reasons:
i)the Tribunal found the applicant’s evidence that he was a police officer since 1983 was inconsistent with the information he gave in Question 38 of Form C of his application for a protection visa that he was a truck driver and it was not persuaded by his explanation for the inconsistency (CB pp.14, 65);
ii)the Tribunal found it implausible that the applicant had no formal identification about his claimed employment as a police officer. It did not consider that the four photographs provided by the applicant were unequivocal proof of his claimed employment (CB pp.53-55). Although, the Tribunal recognised that the applicant was in uniform in the photographs, it was not satisfied that the photographs were genuine. The Tribunal found that it was plausible that some creative photographic techniques were used and gave the photographs no weight (CB pp.65-66);
iii)the Tribunal found that the applicant’s claim that he did not want to be transferred in October 1989 was inconsistent with his earlier evidence that he had applied for the transfer. Accordingly, it found that the applicant’s claim that he had applied for a transfer because he could not “tolerate corruptive and autocratic system” was not true (CB p.66);
iv)the Tribunal found that the applicant’s responses in regard to the functions of the criminal and traffic police teams were “incommensurate” with his claims. In particular, it found his answers in relation to the criminal team were “vague and general” and lacking in knowledge (CB p.66);
v)the Tribunal found that the applicant’s claims about bribing a senior police officer raised serious doubts about his claim that he was against corruption and it did not make sense that he was a party to police corruption if he was against it (CB p.66).
c)Accordingly, the Tribunal did not accept the applicant’s claims of harm, namely that:
i)it found on “the basis of the evidence as a whole” that the applicant was not a witness of truth (CB p.66);
ii)it found that he was not a credible person because of inconsistencies in his evidence, his limited knowledge of police work and his claimed unwillingness to be involved in police corruption when he asserted that he was against it (CB p.66);
iii)it was not satisfied that the applicant had been a police officer since 1983 or any time and had assisted six Falun Gong practitioners in unlawfully obtaining their passports through the applicant’s connection with a corrupt senior police officer (CB p.66);
iv)it did not accept that the applicant had escorted the practitioners to Thailand and now faced danger in the People’s Republic of China because his assistance was revealed (CB p.67); and
v)it did not accept that the applicant had any political views because those views were contingent upon the applicant’s claims that he assisted Falun Gong practitioners, which the Tribunal did not accept (CB p.67).
Application for review of the Tribunal’s decision
On 20 September 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
1.the member of the Tribunal only referred to the country information unfavourable for the protection visa applicant
2.it is totally hypothetical of the Tribunal member to say the evidence provided to the Tribunal by the applicant was not genuine
3.the member of the Tribunal embraced group information not applicable for individual applicant
4.the member of the Tribunal identified the wrong questions and ignored the relevant materials and relied on irrelevant materials
5.the member of the Tribunal acted in a way that affects the exercise of power by making an error of law
6.the member of the Tribunal determined questions of law not in accordance with the law
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 (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant 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.
Applicant’s submissions
The applicant appeared as a self represented litigant with the aid of a Mandarin interpreter. He attended a directions hearing on 1 October 2004 and consented to Short Minutes of Order requiring the filing and serving of an amended application giving full particulars of each ground of review to be relied upon and any supporting evidence by
26 November 2004. This order was not complied with by the applicant and he did not file and serve any written submissions prior to the final hearing.
At the final hearing, when the applicant was invited to make oral submissions in support of his application these were limited to the extent that he disagreed with the Tribunal’s findings, particularly in relation to the four photographs which he had submitted as proof of his membership of the police force. The Tribunal was not satisfied that the photographs were genuine and the applicant disputed this finding.
The applicant also indicated that he had not received advice from the Pilot RRT Legal Advice Scheme (NSW) which he had indicated that he wished to participate in. At the directions hearing on 1 October 2004 the applicant had been offered the opportunity to participate in the Scheme. There was a note on the Court file that in March 2005 the applicant, with the assistance of an interpreter, contacted the Registry indicating he had not received notification of the Scheme. The file also revealed that a letter was forwarded to the applicant on 4 March 2005 advising the contact details of the legal adviser allocated to the applicant. However, the applicant denied receiving this correspondence. It was noted that the information was forwarded to both a Post Office Box and to a residential address in Neutral Bay but the applicant denied receiving either pieces of correspondence. He indicated that the Post Office Box in Haymarket was that of a friend and that the friend would have notified the applicant if correspondence had been received.
Respondent’s submissions
Ms J Bautista, Solicitor appearing for the respondent, indicated that she would rely upon her written submissions filed in these proceedings. The written submissions contained the following contentions:
a)On 20 September 2004, the applicant filed an application for judicial review in the Federal Magistrates Court containing various grounds (see paragraph 6 above). However, no particulars were provided in support of these grounds.
b)The applicant failed to file an affidavit in support of his application as required by Rule 4.05(1) of the Federal Magistrates Court Rules 2001 (Cth) and had not filed any evidence in support of his claimed grounds of review in accordance with consent orders made on 1 October 2004. As noted above, the grounds pleaded by the applicant in the application filed in this Court were devoid of particulars of any jurisdictional error by the Tribunal.
c)The first ground of review was misconceived and must fail as the Tribunal did not refer to or rely on any country information.
d)The second ground appeared to amount to dissatisfaction with the weight the Tribunal attached to the evidence which was a matter for the Tribunal to determine in its function as sole arbiter of the facts. In any event, the only evidence the applicant lodged in support of his claims were four photographs. The Tribunal made findings of fact in regard to those photographs including that it was plausible that creative photographic techniques were used. The Tribunal put that concern to the applicant for comment at the Tribunal hearing. As such, no unfairness arises from that finding: WACO v Minister for Immigration & Multicultural & Indigenous Affairs.
e)The third ground appeared to be misconceived as the Tribunal did not refer to or rely on any “group information”. The Tribunal’s strong adverse credibility findings were based on its assessment of the evidence and, in particular, the identified inconsistencies in the applicant’s evidence and his lack of knowledge. That ground too must fail.
f)The fourth ground pleaded that the Tribunal identified the wrong questions, ignored relevant material and relied on irrelevant materials. Again, no particulars were provided in support and there was no evidence on the materials to support such a ground. The Tribunal considered all of the applicant’s claims and put its concerns to the applicant about inconsistencies in his evidence and his lack of knowledge. The Tribunal’s assessment of his claims was a matter for the Tribunal and was open on the evidence.
g)The fifth and sixth grounds appeared to amount to an allegation that the Tribunal did not properly apply the law and made an error of law. No particulars were provided to indicate how the Tribunal misconstrued or misapplied the law and no submissions were filed and served by the applicant. In the absence of particulars the assertion was meaningless and the respondent has no case to answer.
h)The rejection of the applicant’s claims turned on the Tribunal’s findings of adverse credibility. An assessment of the credibility of the applicant is essentially a matter for the Tribunal alone: Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham per McHugh J at [423] and “a function of the primary decision-maker par excellence”: Kopalapillai v Minister for Immigration & Multicultural Affairs; W148/00A v Minister for Immigration & Multicultural Affairs at [64]-[69]. The Tribunal’s factual findings provided a complete answer to the applicant’s claims.
Reasons
The significant finding of the Tribunal was the applicant’s lack of credibility brought about by the implausibility of a number of statements and inconsistencies throughout his claim. Statements such as the applicant’s claim that he was a truck driver at the same time as being a serving police officer were put to the applicant during the Tribunal hearing and his response to those issues were not held to be creditable. Similarly the claim regarding the transfer between the criminal investigation branch and that of the traffic police must have led to a similar conclusion. Each of these issues was put to the applicant and the Tribunal member was not willing to accept the responses given.
In respect of ground 1, the applicant claimed that the Tribunal only referred to country information unfavourable to him. This claim was not particularised and no oral evidence was presented to identify the country information to which the applicant objected. In the Tribunal’s decision there was no reference to any country information nor was there any reference to country information in the delegate’s decision. There was no indication that the Tribunal considered any country information, favourable or unfavourable. This ground therefore cannot be sustained.
In respect of ground 2, the only materials supplied to the Tribunal were the four photographs of the applicant which were presented as proof of his membership in the police force. The applicant claimed he had no form of identification papers or evidence to substantiate his membership of the police force. The claim was that such material had been confiscated by the police department, leaving the applicant without any proof of identity or membership of the police force. The Tribunal indicated its reservations regarding the authenticity of the photographs and that issue was put to the applicant without a satisfactory response. The Tribunal indicated that it was possible by digital techniques to prepare photographs of the nature of those supplied by the applicant and it was unwilling to accept they were an authentic verification of the applicant’s membership of the police force. The Tribunal observed the appropriate procedure of a decision maker by putting its concerns regarding the authenticity of the photographs to the applicant and inviting his comments. The Tribunal’s finding as to the authenticity of the photographs was a finding of fact and is the preserve of the Tribunal. I accepted the respondent’s submissions and authority cited in respect of this ground and find that the ground cannot be sustained.
In respect of ground 3, it was similar to ground 1 in that it referred to country information used by the Tribunal in reaching its decision.
I repeat the observation made under ground 1 that the decisions of the Tribunal and the delegate made no reference to country information considered by them. For the same reasons as stated in ground 1, this ground must fail.
In respect of ground 4, the applicant claimed the Tribunal asked the wrong questions, ignored relevant material and used irrelevant material in its consideration. The nature of each of these categories was not identified in any particularisation of the claim, the grounds or in any supporting affidavit material. The applicant made no oral submissions in respect of this ground. A fair reading of the decision does not identify any such issues that could be characterised as falling within any of these three claims. Each of the issues the Tribunal considered was put to the applicant and he was provided with an opportunity to respond. The Tribunal made its decision having regard to the inconsistencies of the responses and apparent lack of knowledge of any detail in respect of each issue. This ground cannot be sustained.
In respect of ground 5, the applicant made a bald statement that the Tribunal in its decision making process made an error in law. This error was not identified and there was no formal particularisation that gave any indication what this error may be. A fair reading of the decision does not identify any action by the Tribunal that could be characterised in this way. This ground must fail.
Ground 6, much like the previous ground, alleged that the Tribunal determined a question of law not in accordance with the law dictating its decision making powers. This ground was unparticularised and in the absence of any reference to what may be alleged, it was not possible for the applicant to sustain this ground.
Putting the applicant’s pleadings to one side and addressing the Court’s responsibility to independently consider whether there is any jurisdictional error on the face of the Tribunal’s decision, a fair reading of the decision does not reveal any jurisdictional error. The Tribunal reached its decision on an adverse finding in respect of the applicant’s credibility and this is a function of the Tribunal as a primary decision maker. I agree with the submissions made by the respondent’s solicitor in regard to the applicant’s claims.
Conclusion
For the reasons set out above, I am unable to find a jurisdictional error in the decision of the Tribunal. The application 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 twenty-two (22) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 31 May 2005
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