SZEQY v Minister for Immigration - [2005] FMCA 1754

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEQY v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1754

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91X, 422B, 424A, 441A, 474, 483A
Judiciary Act 1903 (Cth), s.39B
Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), Sch 1 Item 7(5)

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
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
SZEGT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1514
VXDC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1388
Yo Han Chung v University of Sydney & Ors [2002] FCA 186

Applicant:

SZEQY

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File No:

SYG 3276 of 2004

Delivered on:

30 November 2005

Delivered at:

Sydney

Hearing date:

17 November 2005

Judgment of:

Lloyd-Jones FM

REPRESENTATION

The applicant appeared in person with the aid of an interpreter.

Counsel for the Respondent:

Ms S McNaughton

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application is 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 3276 of 2004

SZEQY

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS 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 8 November 2004 for a judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 14 September 2004 and handed down on 7 October 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 22 April 2004 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
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 “SZEQY”.
The respondent filed and served an affidavit of Brooke Marie Griffin affirmed on 4 November 2005 to be admitted into evidence. A Court Book (“CB”) prepared by the respondent solicitors was filed and served on 21 December 2004.

Background

The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 4 April 2004. On 14 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 (CB pp.1-33). On 22 April 2004 the delegate refused to grant a protection visa (CB pp.34-46) and on

21 May 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.47-64).
The applicant claimed he is a member of the Christian church in the People’s Republic of China and that the authorities questioned him on three occasions. He claimed that a fellow church member advised him in March 2004 that he was at risk because of information given to the Public Security Bureau (“PSB”). The applicant was then assisted in obtaining an Australian visa and leaving the People’s Republic of China (CB p.41). The applicant was granted a passport in China on

27 October 2003 and he then travelled to Thailand, Singapore and Malaysia before returning to China on 15 November 2003. He was then able to depart legally from China for Australia with no apparent difficulties on 4 April 2004 (CB p.44).
The applicant made two statutory declarations setting out in some detail the background to his claim. The first of these statutory declarations was provided to the delegate and was dated 13 April 2004 (CB pp.23-27). The second statutory declaration was provided to the Tribunal and dated 16 May 2004 (CB pp.51-56).

The Tribunal’s findings and reasons

A convenient summary of the Tribunal’s reasons was contained in the respondent’s written submissions prepared by Ms McNaughton and

I adopt paragraphs 8-10 of those submissions for the purpose of this judgment:
[8]The Tribunal set out the applicant’s written claims and the evidence given by the applicant during the course of the hearing (CB 90-93). It accepted that the applicant is a citizen of the People’s Republic of China (CB p.93.9).
[9]The Tribunal was not satisfied, however, that the applicant was a witness of truth and found that the applicant had fabricated his claims (CB pp.94.1, 95.8). The Tribunal found the applicant’s explanation for why he did not reveal his alleged true identity on the visa application to be vague and unpersuasive (CB p.94.3). When requested by the Tribunal to sign his name on a blank sheet, the applicant signed his name the same as he did on his visa application, which the Tribunal found provided further evidence that his identity claim was a fabrication (CB p.94.5). The documents obtained by the applicant in support of his so-called real identity were, on the applicant’s own evidence, obtained unlawfully. This caused the Tribunal to doubt the authenticity of the documents and it could not be satisfied that the documents were proof of the matters as claimed. The Tribunal also found a number of inconsistencies in the applicant’s claims (such as inconsistent dates of detention, and inconsistencies relating to when he started assisting the underground church) (CCB pp.94.9-95.3).
[10]The Tribunal stated at page 95.4:
“Given the inconsistency and the credibility concerns, the Tribunal cannot accept that the applicant had assisted an underground Church at any stage and consequently, the Tribunal rejects the applicant’s claim that he had been subjected to investigation by the PSB given that a positive finding in relation to this claim is contingent upon a finding that the applicant was involved in an underground Church, which the Tribunal has not accepted.”
The Tribunal went on to state that it was not persuaded by the applicant’s explanation for not mentioning the Shouters’ Group previously, and gave the explanation no weight. It did not accept the applicant had ever been a member of the Shouters’ Group (or any other religious groups) either in China or in Australia (CB p.95.8). The Tribunal accordingly affirmed the decision not to grant a protection visa.

Application for review of the Tribunal’s decision

On 8 November 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 27 January 2005 the applicant filed an amended application which contained the identical grounds to the original application however the particulars had been amended and sections of the Act had been reproduced highlighting several key phrases. The grounds are as follows:
·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
The Tribunal’s decision, mostly, relied on its doubts about my ‘true’ identity, and the Tribunal, particularly, suspected the authenticity of those documents that I have provided to demonstrate my true identity. However, the Tribunal failed to conduct any investigation, and particularly the Tribunal failed to seek professional opinions from relevant professional body regarding to my ‘true’ identity.
There were some inconsistencies during the Tribunal’s hearing. However, the Tribunal failed to pay attention to misunderstanding between interpreter and me. As a matter of fact, owing to different dialect background, I sometimes felt very difficult to understand the interpreter during the Tribunal’s hearing.
The Tribunal failed to arrange a fair hearing for me. As a matter of fact, the Tribunal did not give me any chances to completely and clearly explain my claims for a protection visa during the Tribunal’s hearing, and I have many times been interrupted and disturbed by the Tribunal.
The Tribunal’s decision, also, relied on some independent country information.
Section 424A and s.441A were set out in their entirely but are not reproduced in this judgment.
Unfortunately, based on the facts:
The Tribunal did not provide me any fair chances during the hearing; and
I could not understand the interpreter sometimes owing to different dialect background.
It is definitely impossible for me to be given all any information that the Tribunal considers would be the reason, or part of a reason, for affirming the decision that is under review; and particularly it is impossible to ensure me to understand why it is relevant to the review. In such a situation, I definitely lost my chance to make my comment on the information.
In summary, the Tribunal failed to comply with its obligations under Section 424A of the Migration Act 1958.

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.

Reasons

The applicant appeared self represented with the aid of a Mandarin interpreter. The applicant attended a directions hearing on

16 November 2004 and consented to Short Minutes of Order at that time which required the filing and serving of an amended application and any evidence upon which he proposed to rely at the hearing. On 27 January 2005 the applicant subsequently filed an amended application but did not file any written submissions prior the hearing. When the applicant was invited to make oral submissions in support of his application he raised the issue of his dual identity. He stated that the Tribunal did not believe him and indicated that the Tribunal could have verified that the passport he had travelled on was false if it had approached the Chinese Embassy to verify the information. The applicant also indicated that any documents he provided were executed using both his identities. The applicant was invited to indicate in the Court Book where he had followed this practice.
It was interesting to note that all the documents executed by the applicant prior to the delegate’s decision were executed using one signature in the identity that he had adopted in order to obtain his documentation from the Chinese government, being that of his false identity. That signature appears on the applicant’s original visa application Form B (CB p.8), Form C (CB p.21), the statutory declaration affirmed on 13 April 2004 and Form 956 authorising a person to act and receive communication on his behalf (CB p.33). That is the signature that also appears on the original passport the applicant was using when he entered Australia.
The dual name and signatures appeared on documentation executed after the delegate’s decision and appeared on the application for review form (CB p.50) and at the foot of each page of the statutory declaration affirmed on 16 May 2004 (CB pp.51-56). However, this practice was not continued subsequent to that set of documents and it was noted that on the response to hearing invitation executed on 13 June 2004, the second response to hearing invitation executed on 25 July 2004, the application to the Federal Magistrates Court filed on 8 November 2004 and the amended application filed on 27 January 2005 the dual signature practice was abandoned and the applicant reverted to the signature used on his original application and contained in his claimed false passport. The applicant made no further submissions and indicated he would rely on his amended application.
The amended application set out two grounds of review in that the Tribunal made an error of law constituting a jurisdictional error and a procedural error constituting an absence of natural justice. Both these grounds were particularised by four paragraphs which I will deal with in turn.
In the first paragraph the applicant contended that the Tribunal should have undertaken its own enquiries about the authenticity of the documents the applicant provided to demonstrate his true identity. The respondent contended that the Tribunal gave cogent reasons for rejecting the authenticity of the documents and, in light of those reasons, was under no duty to make further enquiries. There is no general duty to make enquiries about an applicant’s claim: Abebe v Commonwealth of Australia per Gummow and Hayne JJ at [187]:
“… The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of the contentions that she has a well founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.”
See also Prasad v Minister for Immigration & Ethnic Affairs per Wilcox J at [170]; SZEGT v Minister for Immigration & Multicultural & Indigenous Affairs (“SZEGT”) per Edmonds J at [20]-[26].
In the second paragraph of particulars the applicant complained he had trouble understanding the interpreter at the Tribunal hearing. The applicant claimed that this difficulty was due to a different dialect background between himself and the interpreter. This claim is contrary with the evidence available from the Tribunal hearing transcript where the issue of understanding and compatibility of the interpreter was raised with the applicant during the opening preliminary stages of the hearing. The Tribunal member explained the role and independence of the interpreter and then briefly outlined the procedure to be followed. The Tribunal member then asked the question:
Tribunal member:          I want to firstly ask you if you have any difficulties whatsoever understanding Mr Interpreter?
Applicant (responding
through interpreter)     No
Tribunal member:          The second question is whether you have any objections whatsoever to this particular interpreter?
Applicant (responding
through interpreter)     No
Affidavit of Ms Griffin (transcript page 2).
The Tribunal hearing commenced at 9.35 a.m. and finished at 10.55 a.m. and during that time there was no further exchange between the applicant and the Tribunal member raising any issue in respect of the interpreter and difficulties being experienced in understanding what was transpiring at the hearing. There were a number of exchanges on difficult questions for the applicant and some questions had to be repeated but these were to clarify meaning and intent of the question and answer as opposed to any reference of difficulties being experienced with the interpreter. The applicant has not sought to tender the tapes of the Tribunal hearing as evidence of any difficulty with the translation service.
The third paragraph of the applicant’s particulars contended that the Tribunal hearing was not “fair”. As these proceedings have been brought since the amendments to the Act under the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) Schedule 1 Item 7(5), the proceedings are subject to s.422B which has introduced into Division 4 – Conduct of Review an exhaustive statement of the natural justice hearing rule. Accordingly, the common law principles relating to the natural justice “hearing” rule do not apply: VXDC v Minister for Immigration & Multicultural & Indigenous Affairs per Heerey J at [22]-[31]. I accept the respondent’s submission that the applicant has not made good his submission that the Tribunal failed to arrange a fair hearing. The applicant had a proper opportunity to present his case and address adverse material: SZEGT per Edmonds J at [29(3)]. The only issue that the applicant has raised is the alleged problem with the interpreter. However, he agreed that he could understand the interpreter when this enquiry was made of him at the commencement of the Tribunal hearing and no subsequent complaint emerged.
The applicant made a general complaint that the Tribunal did not give him any chance to complete and clearly explain his claim for protection during the Tribunal hearing. This was not consistent with the hearing transcript which indicates at the end of the formal questions by the Tribunal member, the Tribunal member made the following statement:
Tribunal member: Now, I’ve finished asking you what I want to ask you, [applicant] and from what we have said it should be very clear to you that I have concerns about your application. Is there anything else you would like to say before I finish the hearing, [applicant].
Applicant (responding
through interpreter) No
The applicant also complained that he was interrupted and disturbed by the Tribunal member on a number of occasions during the hearing. At the beginning of the hearing, the Tribunal member explained to the applicant the process she intended to adopt in determining his refugee status. She indicated there were a number of questions she wished to ask to clarify issues arising from the various material that she had before her. The Tribunal member asked the applicant did he understand the approach she was adopting and she enquired of the applicant whether he understood and whether he had any questions in respect of the procedure to which he responded that he had no questions. The applicant did not put forward any submissions or transcript material illustrating where the interruptions or disturbances occurred and it was not immediately apparent from reading the transcript that he was unduly interrupted or prevented from providing answers to questions put to him.
The fourth paragraph of the applicant’s particulars indicated that the Tribunal’s decision relied upon some independent country information. This statement was followed by an extract of s.424A of the Act. Although there was no specific claim made, it can only be assumed that the applicant was attempting to promote a claim that s.424A had been breached in that the Tribunal failed to disclose information that would be a reason or part of the reason for the decision of the Tribunal to affirm the decision of the delegate. Presumably, it was the independent country information that the applicant was identifying as the information that was not specifically disclosed to him in accordance with the provisions of that section of the Act. Unfortunately, this appears to be a misunderstanding of the operation of this section of the Act as the country information falls within the exception set out at s.424A(3)(a) because of its non specific nature in respect of the applicant personally. There was no pleaded particular, oral or written submission which identified which country information was the subject of the applicant’s complaint. A review of the Tribunal’s decision does not identify any specific country information that it referred to nor does the decision indicate that the Tribunal relied on any independent country information in reaching its decision. The Tribunal’s decision does make reference to material provided by the applicant himself but there was no material that was identified that would be subject to the provisions of s.424A in the nature of country information that would be subject to that provision. Again, there was no particularisation, oral or written submission that identified the information used in the making of the decision that could be subject to the provisions of s.424A.

Where an applicant is self represented the Court must independently consider whether an arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors. In order to perform this obligation, I have reconsidered the contents of the Court Book that has been filed in these proceedings and given special attention to the contents of the Tribunal’s decision. On the face of those documents, it is difficult to identify any area where the Tribunal has made a jurisdictional error. Similarly, I have read the transcript of the Tribunal hearing which is attached to the affidavit of Ms Griffin and that document does not disclose any of the complaints raised by the applicant in his amended application. The Tribunal’s decision does not contain any reference to independent country material upon which it relied to make its decision nor does the Court Book contain any independent country information. The applicant, in his particulars to his pleadings, claimed that the Tribunal referred to independent country information but that information is not identified and I am unable to locate reference to that material.

Conclusion

I accept the respondent’s submissions that a claim for jurisdictional error cannot be sustained on the material pleaded nor am I able to identify any jurisdictional error in the Tribunal’s decision making process on the face of the document. 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 twenty-five (25) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 30 November 2005