SZEUE v Minister for Immigration

[2005] FMCA 535

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEUE v MINISTER FOR IMMIGRATION [2005] FMCA 535

MIGRATION – Refugee – failed to follow requirements of s.424A – procedural fairness – adverse credibility finding by Tribunal – Tribunal did not make a genuine and realistic attempt to make decision.

Migration Act 1958, ss.65, 424, 424A, 422B

Tin v Minister for Immigration Multicultural and Indigenous Affairs [2000] FCA 1109
Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1
Re Minster for Immigration Multicultural and Indigenous Affairs; Ex parte applicant S154/2002 [2003] HCA 6
Commissioner for ACT Revenue v Allophone P/L (1994) 49 FCR 576 at 592
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57

Applicant: SZEUE

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 1800 of 2004

Judgment of: Nicholls FM

Hearing date: 12 April 2005

Date of Last Submission: 22 March 2005

Delivered at: Sydney

Delivered on: 12 April 2005

REPRESENTATION

Counsel for the Applicant: NIL

Solicitors for the Applicant: NIL

Counsel for the Respondent: Mr. R. White

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the respondent's costs set in the amount of $4500 pursuant to rule 21.02(2)(a) of the Federal Magistrate Court Rules.

3. The applicant is not to file any application in this Court relating to the Tribunal decision made on 21 April 2004, without leave of the Court.

4. Pursuant to s.91X of the Migration Act that there be no publication of the applicant's name in this matter with reference to the respondent's Exhibit 3.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1800 of 2004

SZEUE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. I have before me an application filed in this Court on 9 June 2004 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 21 April 2004 and handed down on 18 May 2004 to affirm the decision made on 20 January 2004 by a delegate of the respondent minister to refuse a protection visa to the applicant.

2. The applicant is a citizen of the People's Republic of China who first arrived in Australia on 10 November 2001 as a student.  He departed on 8 April 2002 and returned to China, and subsequently re-entered Australia on 29 April 2002 using the same student visa for this purpose.  The applicant lodged an application for a protection visa with the respondent's Department on 12 January 2004. His claims to protection were that he feared persecution owing to his father's political opinion which is opposed to the Chinese government's policy and that his father had been detained by the Chinese authorities.

3. In his application to this Court the applicant asserted four grounds:

   1)The Tribunal failed to follow the requirements of the Migration Act 1958, s.424A.

   2)That the Tribunal denied the applicant procedural fairness in that it relied upon information adverse to the applicant without giving the applicant an opportunity to comment upon that information.

   3)The Tribunal did not make a genuine and realistic attempt to make the decision in a bona fide manner in that the:

   a)decision record contained pro forma and repeated material;

   b)Tribunal did not afford to the applicant the benefit of the doubt when there was no material to the contrary to what was being asserted by the applicant;

   c)Tribunal did not notify the applicant of material adverse to the applicant and upon which it intended to rely.

   4)The Tribunal applied the wrong test in that it inquired as to the situation when the applicant left China without inquiring into what would be the position if the applicant were now forced to return to China.

4. In an amended application filed on 5 October 2004 the applicant then asserted two grounds:

   “1. The Tribunal found that the applicant does not satisfy the criteria for the grant of the visa of a subclass 866 on the basis that the claim put forward by the applicant is not creditable.  In fact, the applicant at the time of application for the relevant visa had made specific claims which are in conformity with the country information available to the Department of Immigration Multicultural and Indigenous Affairs. The applicant actually satisfies the requirements for the grant of the visa. The Tribunal fell into jurisdictional error in making this finding.

   2.The RRT did not assess the likelihood of persecution the applicant faces now. Rather, the Tribunal only assessed the situation in which the applicant would be at the time of the original application lodged with the Department of Immigration Multicultural and Indigenous Affairs. The Tribunal fell into jurisdictional error in making this finding.”

5. I have before me written submissions by the respondent’s solicitors and I also have before me a Notice of Motion filed by the respondent on 21 September 2004 seeking summary dismissal of the application pursuant to rule 13.10(a) of the Federal Magistrate Court Rules on the basis that the application did not disclose a reasonable course of action. Both the Notice of Motion and the substantive matter were set down for hearing today. Mr. White for the respondent Minister pressed the Notice of Motion but sought that both matters be heard today. 

6. I note relevantly that the applicant was provided with the opportunity in June 2004 to access legal advice with a lawyer on the panel of the Court's Legal Advice Scheme.  On 17 September 2004 the applicant attended at the first Court date in this matter and was assisted by an interpreter in the Mandarin language. The originating application asserted some grounds but lacked full particulars. Orders were made by consent that an amended application giving complete particulars, any affidavit evidence and written submissions were to be filed. The applicant, at least in form, attempted to comply with order 1 in that he filed an amended application, but did not give complete particulars of each ground of review relied upon. I note that the applicant has not filed any affidavit evidence as referred to in the same order, nor do I have before me any further written submissions as required by other orders made on that date.

7. The applicant appeared on his own behalf before me today.  He was assisted by an interpreter in the Mandarin language and advised the Court that he relied on the written material presented to the Court which had been prepared with the help of a friend whom he at first referred to as “my lawyer”. Before me the applicant generally asserted that he had not been treated fairly by the Tribunal but despite the opportunity, was unable to add anything of substance to the written material submitted to the Court.

8. The applicant's claims before the Tribunal were contained in his protection visa application to the respondent's Department lodged on 12 January 2004, Court Book 1-24, and in particular in an attached personal statement at CB 25.  The applicant was assisted by a migration agent. His application was refused and a record of the delegate's decision is at CB 28-32. The applicant's application for review to the Tribunal is at CB 33-36.  He continued to be assisted by a migration agent at this time.  Nothing of substance was added to the applicant's claims. In his application to the Tribunal he stated:

   “Please refer to my detailed statement at DIMIA.”

9. The Tribunal wrote to the applicant on 18 March 2004 advising that it was unable to make a favourable decision in his case on the information before it and invited the applicant to a hearing to support his claims.  The hearing took place on 15 April 2004.

10. It is clear from the Tribunal's record of decision that the Tribunal's conclusion that the applicant was not a person to whom Australia owed any protection obligations pursuant to the Refugees' Convention was based on the Tribunal not accepting any of the applicant's claims because it was not satisfied that he was a credible witness or that he had provided a credible or reliable account of the experiences of others in China [CB 55.9]. In written submissions filed on 22 March 2005 the respondent at paragraph 10 refers to the Tribunal's reasons for its strong adverse credibility findings in relation to the applicant.  I adopt this paragraph for the purposes of this judgment.

    “The Tribunal made its strong adverse credibility findings for the following reasons:

    (i)the applicant was not frank in his oral evidence about the circumstances in which his student visa was cancelled and bordered on being misleading;

    (ii)the applicant had to be frequently pressed by the Tribunal to provide details about his father’s actual experiences in the PRC and the surrounding circumstances to which the applicant’s responses were largely to the effect that he did not know;

    (iii)“key differences” were identified between the applicant’s oral and written evidence and matters raised in his statement were not sustained by him in his oral evidence.  For example, the applicant attached significance in his statement to such matters as why his father was detained, the authorities’ intentions in respect of him and his father’s position and role in the PLA but failed to refer to these matters at all in his oral evidence;

    (iv)the applicant was not frank or forthcoming with the presentation of his oral evidence and did not impress the Tribunal in explaining variations in his evidence or the omission of significant factual matters. In response to the identified variations, the applicant attempted to shift his evidence, explain them away by attributing them to assumptions or maintain that both versions were true when such positions could not be reconciled.  His evidence about the timing of his father’s detention, for example, was found to be completely unsatisfactory;

    (v)despite specifically verifying to the Tribunal that the information in his statement was correct the applicant did not alert the Tribunal to any potential deficiencies in his written statement.”

11. Ground 1 in the applicant's original application asserts a failure on the part of the Tribunal to comply with s.424A of the Migration Act. This ground is not particularised and in the circumstances of this case is without merit and must fail. It is clear from the Tribunal’s decision record that the Tribunal's adverse findings on credibility were based on its assessment of the evidence put forward by the applicant himself. The Tribunal did not rely on any independent information that would fall within the ambit of this section. The review conducted by the Tribunal was subject to s.422B of the Migration Act and to the extent that Div 4 of Pt 7 of the Act is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters that it deals with, then s.424A deals with information that must be given to the applicant. Section 424A(1) provides that the Tribunal must give to the applicant information that would be the reason, or part of the reason, for affirming the decision under review. But clearly s.424A is concerned with knowledge of a fact or circumstance communicated to, or received, by the Tribunal. It is not concerned with the thought processes of the Tribunal which appears to be the applicant's real complaint before me. In the case of Tin v Minister for Immigration Multicultural and Indigenous Affairs [2000] FCA 1109 Sackville, J said:

    “It follows that a subjective determination by the Tribunal that the applicant's account is or may not be credible does not enliven the obligation imposed by s.424A(1).  Thus, even if the Tribunal had not alerted the applicant to the possibility that her evidence might not be accepted at face value, its failure to do so would not have contravened s.424A(1).”

12. There is nothing before me to show that the applicant could succeed on this ground.

13. To the extent that ground 2 seeks to assert some common law breach of procedural fairness I again note that s. 422B of the Act would apply to this decision, but in any event there is nothing before me to show any such breach. The Tribunal's concerns were put to the applicant. He was given an opportunity to explain and the Tribunal took relevant matters into account. There is nothing before me to show that the applicant was denied a fair hearing or that he was taken by surprise by any information unknown to him.

14. Ground 3 asserts that the Tribunal did not make a genuine attempt to make the decision in a bona fide manner. The applicant attempts to particularise this by saying:

    a)That the decision record contained pro forma and repeated material.

15. It is clear that the Tribunal does repeat certain matters, in its decision record. In giving its account of the applicant's written claims, then its account of the applicant's oral claims at the hearing, and then relying on these in giving its reasons for decision, the Tribunal obviously needed to repeat certain matters. This is entirely appropriate and indeed is an indicator that the Tribunal approached its task in a comprehensive and detailed fashion. In relation to the claim of pro forma material the applicant may be referring to the material at CB 45.5-47.5 under the heading "Definition of Refugee", which is similar to material often found in Tribunal records of decision. This is not surprising given that the matters asserted, being concerned with the definition of refugee, would apply equally to all refugee claimants such as the applicant appearing before the Tribunal. There is nothing before me to show any pro forma or formulaic approach to the Tribunal's findings and reasons which are clearly focused on this applicant's claims as presented. 

    b)The applicant complains that the Tribunal did not give him the benefit of the doubt.

16. The Tribunal clearly looked at all of the applicant's claims as put by the applicant. It did not believe him in critical aspects and it gave reasons for this, which were open to the Tribunal on the material before it.  As a primary decision maker the Tribunal's role is to make findings of fact which include findings as to credibility. There is ample authority for this. McHugh, J in ReThe Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1. Further, pursuant to s.65 of the Act, relevantly a protection visa may only be granted if a level of satisfaction is reached that the prescribed criteria for the visa have been met. The Tribunal does not have to uncritically accept matters put by the applicant. The applicant’s complaint in the absence of anything else amounts to a complaint that the Tribunal should have believed him. I can see no error in how the Tribunal in this case has approached this task and I can see no requirement in the way asserted by the applicant that the Tribunal was required to provide the benefit of the doubt in the way and manner put by the applicant.

    c)The applicant also provides an example of the absence of a bona fide approach, he says, by the Tribunal in that the Tribunal did not notify him of material adverse to the application upon which it intended to rely.

17. It is clear that in all relevant and critical respects the Tribunal did not rely on any independent adverse material in making its decision. If however, what the applicant refers to, is the view that the Tribunal took of the material before it in making its decision, it is not necessary for the Tribunal to put its thought processes to the applicant. There is authority that the Tribunal is not required to provide an opportunity for comment on its thought processes on the way to making a decision. See Re MIMIA; Ex parte Applicant S154/2002 201 ALR 437 at [54], and per Kirby J at [85]-[86] referring to Commissionerfor ACT Revenue v Allophone P/L (1994) 49 FCR 576 at 592.

18. This general proposition is qualified by the requirement that a decision maker should provide an opportunity for comment on any adverse conclusion which would not obviously be open on the material supplied by the applicant. The key issue is that the applicant should not be caught unawares. As McHugh J, said in Re RRT; Ex parte Aala [2000] 204 CLR 82 at [101]:

    “One of the fundamental rules of the fair hearing doctrine is that a decision maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided.  It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or to make submissions rebutting the potential adverse finding.”

    But in any event, in the case before me, the Tribunal did put to the applicant, and gave him the opportunity to comment on a number of issues of concern to it:

    -the inconsistencies in his timing of the application for a protection visa and the student visa cancellation.  [CB 52.5].

    -the inconsistencies between his various accounts. The Tribunal actually says at CB 53.3:

    “I alerted the applicant to a number of differences between the accounts provided by him of his father's circumstances as contained in his written statement dated 12 January 2004 and that provided by him in his oral evidence.”

    -at CB 53.5 the Tribunal records:

    “The applicant was asked to explain these differences. His attention was specifically drawn to the following matters as contained in his written statement.”

    The applicant's attention was drawn to seven points on which subsequently his oral evidence differed from written claims.

    -Further, the Tribunal also put to the applicant at CB 54.5:

    “I suggested to the applicant that there appeared to have been a shift between his earlier written account and his oral evidence on review as to when his father had actually been detained.  I put to him that on one view this shift might be seen as an attempt to overcome a difficulty identified in the primary decision which was to the effect that given that his father had been detained in around August or September 2003, if he had genuinely been in fear of persecution he would have claimed asylum at an earlier point than on 12 January 2004.”

    At CB 55.2:

    “I suggested to the applicant that it was odd that in his oral evidence he could not recall events to which he had referred in his statement.  If they had really occurred and if they represented a true account of his father's conduct difficulties and circumstances.  The applicant replied that he was not sure, that it was untrue, it was according to the situation at the time and after that things have changed.”

    At CB 55.4 the Tribunal records:

    “I raised with the applicant the concerns that I had about the reliability of the accounts he had provided and his credibility as a witness of truth.  I asked him if there were other matters which he wanted to raise in respect of my concerns.” 

19. It is clear that the applicant was presented with the Tribunal's concerns about his claims and given the opportunity to comment. It is also clear that any assertion of bad faith in the sense of purposely not acting fairly with the applicant, or even bias if that is possibly what the applicant is attempting to put now is clearly not apparent on the material before me.

20. The applicant alleged in his fourth ground that the Tribunal applied the wrong test in that it inquired into the situation when the applicant left China, but did not inquire into the situation if the applicant were now forced to return to China. Relevantly, it is clear that the Tribunal totally rejected the applicant's claims. The Tribunal says at CB 58.5:

    “I reject the applicant's claims in their entirety.”

    All of the applicant's claims were considered and the Tribunal found as the respondent submits, at CB 58.6:

    “I am not satisfied on the evidence before me that there is a real chance that the applicant will be persecuted owing to actual or imputed political opinion, his membership of his family or any other Convention ground. I am satisfied on the evidence before me that the applicant's fear of persecution now or in the future is well founded.”

1. Clearly, the applicant's ground cannot be made out. Having rejected the applicant’s claims in their entirety, the Tribunal was not satisfied that the applicants fear, were he to return to China, was well founded. Further, I can see no obligation in the circumstances for the Tribunal to have made any further enquiries nor is there any evidence that the applicant sought any such enquiries to be made, nor has the applicant provided anything to show that any enquiries would assist his case.

2. The first ground in the amended application asserts that the Tribunal found that the applicant did not satisfy the criteria for the grant of a visa, yet says the applicant, he made specific claims which conform with the country information available to the respondent's Department.  No particulars are provided by way of explanation or clarification by the applicant and it is not apparent as to what the applicant is referring to here. He was not able to provide anything further at the hearing before me. At best, this appears to be an attempt now to seek impermissible merits review from the Court.

3. The second ground in the amended application asserts that the Tribunal only assessed the situation in which the applicant would be as at the time of the original application lodged with the respondent's Department and not the situation the applicant faced as at the time he was before the Tribunal.  Again, as the respondent's solicitors submit, this ground must be rejected for the same reasons as apply to ground 4 in the original application. Further, on any plain reading of the Tribunal's decision record it is clear that the Tribunal did look at the situation as it was presented to it by the applicant. The applicant's oral evidence before it was a critical factor in its decision. CB 58.5:

   “I am not satisfied the applicant is a witness of truth.”

   Ultimately it did not believe the applicant and then said at CB 58.7:

   “I am not satisfied on the evidence before me that there is a real chance that the applicant will be persecuted owing to actual or imputed political opinion, his membership of his family or any other convention ground.  I am not satisfied on the evidence before me that the applicant's fear of persecution now or in the future is well founded.”

   This ground also must fail.

4. Having dismissed the application there is no need to deal specifically with the issue relating to the Notice of Motion so I do not need to go any further into that, nor to consider separately whether the matters raised by the applicant constitute an arguable case. The applicant did not succeed before the Tribunal because the Tribunal strongly did not believe the applicant’s claims. The findings including the finding on credibility were all open to the Tribunal on the material before it and it gave reasons for its findings. There is nothing before me to show that the Tribunal made any error let alone jurisdictional error in making this decision and the application is dismissed for the reasons already given.

5. However, Mr. White for the respondent Minister also sought that an order be made to prevent, except with leave of the Court, future replicated applications to this Court by the applicant in relation to this Tribunal decision. He submitted that the applicant was seeking to take advantage of delay to extend his stay in Australia. He pressed the respondent’s view that this is a manifestly hopeless case where the applicant has little prospect of succeeding and that there was no substance to any of the grounds of review put forward. Relevantly, I note that despite consent orders requiring the applicant to file an amended application giving complete particulars of each ground, he filed a relatively vague and unparticularised amended application. He did not file any evidence in support of his case whilst maintaining general allegations of error on the part of the Tribunal. He did not file any written submissions in support of his case. The applicant had the opportunity of accessing the Court’s Legal Advice Scheme and had the benefit of assistance from someone whom he at first described as “a lawyer”. Yet the amended application in ground one is a mere assertion that the applicant satisfies the criteria for the grant of the protection visa, inviting impermissible merits review, and the second ground is factually incorrect. As I have found above the applicant’s case lacked substance in both the original and amended application. I could not see any real arguable case, nor a real question to be tried. In all the circumstances and in any event noting that the order sought would not prevent the applicant from seeking leave to file any further application, I find it appropriate that such an order be made.

6. At the conclusion of the hearing following the delivery of my reasons for judgment and, after hearing the full reasons for the dismissal of the application the applicant claimed at this late stage that he had never received a copy of the Court Book or any other correspondence from the respondent. He claimed that he did not understand that he was to be given such a Court Book and did not bring anything to Court because “his friend” did not tell him about what he needed to bring to Court.

7. The applicant confirmed that he attended at the first Court date in the matter on 17 September 2004. Mr. White, for the respondent submitted that the Court Book was served on the applicant at the time.

8. He advised that a report was compiled by, Ms. Emma Knight, a solicitor in the employ of the respondent’s solicitors, which indicates that at the directions hearing on 17 September 2004, the Court Book was filed in Court, and a copy was given to the applicant together with a copy of the Notice of Motion and Short Minutes of Order, to which he had agreed after obtaining the assistance of an interpreter. The report of hearing which was sent to the respondent the same day as the directions hearing relevantly stated:

   “We served the applicant by hand with a copy of the Court Book, notice of motion and short minutes of order.”

9. Before me, this document was shown and translated to the applicant, where he did not object to it being submitted to the Court, and then handed up and marked as respondent’s Exhibit 1, “RE 1”.

10. Mr. White also sought to tender a letter that was also served by hand on the applicant with a copy of the Court Book at the directions hearing. This letter relevantly said:

    “We enclose by way of service a copy of the Court Book in this matter. We note that the Court Book was filed in Court at the directions hearing.”

11. Mr. White submitted that this letter would have been prepared in anticipation of the Court Book being filed in Court at the directions hearing on that day, and given to the applicant with the Court Book. This document was shown and translated to the applicant, where he did not object to it being submitted, and then handed up and marked as respondent’s Exhibit 2, “RE 2”.

12. Mr. White also submitted that his copy of the Court Book bore a stamp:

    “Filed in Court 17 September 2004”

This same stamp is on both the copies of the Court Book in the Court file. A further copy of the Court Book was sent to the applicant's Panel Adviser, Mr V. Hooten, on 24 November 2004, together with a copy of the Tribunal’s hearing tapes. The note from Mr Hooten on the Court file is that:

“The applicant failed to appear at a consultation, but advice was prepared and advice was given by mail, 17/12/04.”

1. Further, I note from the Court Book that all the relevant documents contained in the Court Book, as indexed at the front, with the exception of Item Nos. 13 and 16, CB 39, CB 42, being administrative file notes, were either documents submitted by the applicant, correspondence to the applicant in respect of which he has made no claims that he did not receive and the Tribunal’s decision record which is referred to by the applicant in the application to this Court. There is therefore nothing of relevance or significance that was not already known to the applicant, or in respect of which the applicant had made any complaint that he did not receive, contained in the Court Book.

2. Mr. White also submitted that the respondent had sought to serve the written submissions on the applicant by way of post to the address for service provided to the Court, but it was returned. The applicant had not notified the Court of any change of address. Mr. White sought to tender the envelope marked with this address into evidence. The envelope was shown to the applicant, where he did not object to it being submitted, and then handed up and marked as respondent’s Exhibit 3, “RE 3”.

3. In all the circumstances I am satisfied that it is appropriate to proceed with the order to dismiss the application for the reasons above.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:  Wagma Aziza

Date:  13 May 2005