SZFHK v Minister for Immigration
[2005] FMCA 1640
•2 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFHK v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1640 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – Application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – Applicant a citizen of China claiming fear of persecution for reason of being involved in a campaign for the rights of the unemployed – credibility – where Tribunal member who conducted oral hearing retired from Tribunal before making decision – case re-allocated to another Tribunal member – Tribunal member comprising newly constituted Tribunal completed review without inviting applicant to a second hearing – where Tribunal member comprising newly constituted Tribunal invited Applicant to provide update on evidence already provided to the Tribunal – whether the statutory requirement that an applicant be invited to appear before the Tribunal is met where an applicant is not invited to appear before the Tribunal member who decides the application. |
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.422, 424, 424A, 425, 428, 475A
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 followed
Liu v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1362; (2001) 113 FCR 541 – followed
Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1
Yo Han Chung v University of Sydney [2002] FCA 186
| Applicant: | SZFHK |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 3706 of 2004 |
| Delivered on: | 2 November 2005 |
| Delivered at: | Sydney |
| Hearing date: | 2 November 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr Lloyd |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Leave granted to join the Refugee Review Tribunal as Second Respondent.
By consent, Refugee Review Tribunal joined as Second Respondent.
The application is dismissed.
The applicant is to pay the First Respondent’s costs fixed in the sum of $ 6,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3706 of 2004
| SZFHK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal made its decision on 29th October 2004 after a hearing that took place on the 7th and 8th June 2004 and handed down the decision on the 23rd November 2004. The Tribunal affirmed the decision of a delegate of the Minister not to grant a Protection Visa to the Applicant.
Background
The Applicant is a citizen of the People's Republic of China who arrived in Australia on 2nd January 2004. On the 9th January she applied for a Protection (Class XA) Visa claiming a fear of persecution for political reasons. The Applicant had been involved in protests to campaign for the rights of unemployed people.
On 6th February 2004 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused the application for a Protection Visa. On 15th March 2004 the Applicant applied to the Refugee Review Tribunal for review of that decision.
The Applicant attended a hearing of the Tribunal that took place on
7th and 8th June 2004. The member who heard the application for review became unavailable so another Tribunal member, Mr Peter Gacs, made the decision. The Member explained, at page 64 of the Court Book, how he made the decision:
I have before me the Department's file which includes the Protection Visa application and the delegate's decision record.
I have also had regard to the material referred to in the delegate's decision, the taped record of the hearing held before the previous member on the 7 and 8 June 2004 and other material available to the Tribunal from a range of sources.
The Tribunal Member made it clear on page 66 of the Court Book that he had listened to the tape recording of the hearing before the other Member and summarised the hearing at pages 66 to 74 of the Court Book. He also stated that the Tribunal wrote to the Applicant at his direction on the 22nd July 2004 advising that her application had been reconstituted to him and inviting her to provide an update of her evidence if she so wished. He stated at page 74 of the Court Book that no further evidence had been received from the Applicant.
The Refugee Review Tribunal’s Decision
In the Tribunal's Findings and Reasons, the Tribunal Member says, at page 74 of the Court Book:
I have listened carefully to the tape recording of the hearing and taken very careful note of all that transpired. I am satisfied that the Applicant was made aware at the hearing of all the aspects of her claims with which I have difficulties.
The Tribunal was not satisfied with the Applicant's credibility. The Tribunal gave reasons for taking this adverse view of the Applicant's credibility:
The Applicant's evidence contains several inconsistencies, anomalies and implausibilities as I indicate below.
The Member recited several matters about the evidence which he summarised at pages 75 and 76 of the Court Book in this way:
In sum, I do not accept that her (i.e. the Applicant's )father died because the Applicant, her husband, her brother and her sister-in-law had all lost their jobs and for this reason (emphasis added) could not afford to pay for his operation in time. Hence, I do not accept that the Applicant became involved in political activities because she was so upset at her and her family's job losses and the consequences for her father.
The Tribunal went on to describe, on page 76 of the Court Book, further anomalies in the Applicant's evidence. The Tribunal Member said:
I share all of the problems which the previous member told the applicant she had with this set of claims.
At page 78 the Tribunal Member said:
I also share the previous Member's concerns about the Applicant's claims in respect of her needing her brother's help to obtain a passport. There are several internal contradictions in the claims she made in this respect at the hearing.
The Tribunal Member said that there were further inconsistencies in the Applicant's evidence. In the final paragraph of the findings and reasons of the Tribunal, the Tribunal Member said this and I quote:
Hence, I make the overall finding that the Applicant does not have a well-founded fear of persecution in China for reason of her political views and activities. Although no reference was made in her claims to whether she would resume her activities on behalf of laid off workers if she returns to China, I find that even if she does she will suffer no harm amounting to persecution just as she suffered none in the past.
The Tribunal found that the Applicant did not satisfy the criterion set out in sub-section 36(2) of the Act for a Protection Visa and affirmed the decision not to grant a Protection Visa to the Applicant.
The Applicant filed an application for review in the Federal Magistrates Court on 21st December 2004 and filed an Amended Application on the 20th April 2005. The Applicant set out two grounds for her application.
i)There was an error of law in the Tribunal's decision constituting a jurisdictional error.
ii)There was procedural error in the Tribunal's decision constituting an absence of natural justice.
The Amended Application gives a number of particulars about the grounds of her application. She set out that the issue was that the Tribunal has been reconstituted during its processing of her review application. In other words, the Tribunal was constituted by one Member when she attended the hearing before the Tribunal and then reconstituted by another Member when the Tribunal made its decision.
The Applicant then set out her concerns about this procedure and I quote:
I have found no evidence that the Second Tribunal Member has listened carefully to the tape recording of the hearing and taken very careful note of all that transpired. I have found that the Second Tribunal Member in his decision intentionally used the word, "share" which means that he shared the concerns or problems with the First Tribunal Member. I am deeply impressed that the Second Tribunal Member used the word, "share" solely for the purpose to create a legal excuse not to comply with his obligations under s 424, s 424A and s 425 of the Act. According to s 424 of the Act the Tribunal may get any information that it considers relevant. In this case, the Tribunal should get more information regarding to my comment on the Second Tribunal Member to share the concerns or problems of the First Tribunal Member. Unfortunately, the Tribunal failed to do so. According to s 424A the Tribunal must give to me, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review and ensure, as far as is reasonably practicable, that I understand why it is relevant to the review and invite me to comment on it.
In this case, the Tribunal apparently failed to inform me it’s "sharing the similar concerns or problems" between the First and Second Tribunal Member and particularly failed to provide me a chance to comment on such an unusual sharing. According to s 425 of the Act the Tribunal must invite me to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. In this case the Tribunal obviously failed to invite me to appear before the Tribunal to present arguments relating to such an important issue that the Second Tribunal Member has shared the concerns or problems with the First Tribunal Member. I cannot accept that the Second Tribunal Member intentionally worked as a machine, which is exactly copied by the First Tribunal Member. As a matter of fact it is definitely impossible for the Second Tribunal Member to have the exact same opinions as the ones of the First Tribunal Member if you really listened carefully to the tape recording of the hearing. In summary; I never ever believed that the Tribunal has assessed my application fairly and carefully.
The Applicant attended Court. She was not represented by a legal practitioner. She had the assistance of an interpreter in the Mandarin language. I asked the Applicant a number of questions about her application and gave her the opportunity to make oral submissions.
I asked the Applicant to explain why she said that there was no evidence that the Second Tribunal Member had listened carefully to the tape of the hearing. She said that the Tribunal Member had sent a letter to her and a copy of that letter is set out at page 54 of the Court Book.
She said that the Tribunal did not exercise the review process carefully and fairly and during the hearing the First Member did not express a clear opinion. The Applicant expressed concern about the use of the word, "share" by the Second Tribunal Member in the decision. She said that his purpose was to create a proper legal opportunity for himself to deprive her of her right under s.424A and under s.425. She says; that in other words, it was not the Second Member who refused her. The First Tribunal Member retired and the Second Member just handed down the decision.
She pointed out that from the 8th June to the 22 July, when the Second Tribunal member wrote to her or caused her to be written to, was a period of one and half months and asked, rhetorically, why did not the First Tribunal Member hand down a decision refusing her application? Her submission was that the First Tribunal Member was obviously going to grant her application.
The Applicant said that the letter from the Tribunal to her of the
22nd July did not tell her that the Second Tribunal Member shared the First Member's opinions. She said that the Second Tribunal Member repeatedly mentioned that he agreed with the First Member's opinion but she did not know what the First Member's opinion was. She submitted that under s 425 of the Migration Act that the Tribunal Member must conduct the hearing by himself or herself. She also told the Court that the hearing did not take place over two days because originally it was scheduled on 7th June but re-scheduled to the 8th June she said.
For the Respondent Minister, Mr Lloyd of counsel referred the Court to the supplementary Court Book which contains the hearing information forms from 7th June and 8th June relating to the Applicant's case. The evidence shows that on the 7th June the Tribunal commenced a hearing at 9:00am. The Applicant attended and a Mandarin interpreter was provided. According to the hearing information sheet the proceedings had finished at 11:20 am. The evidence also shows that at 11:00am on the 8th June the hearing recommenced. A Mandarin interpreter was provided and that the hearing finished at 12:20pm. I am satisfied that the evidence shows that the Applicant was mistaken when she said the hearing only took place on one day.
The counsel for the Respondent Minister said from the bar table and the Applicant did not disagree; that the First Tribunal Member had in fact retired in the intervening period. There is no explanation given as to why the First Tribunal Member did not make a decision.
Counsel for the Respondent submitted that the use of the word, "shared" by the Second Tribunal Member in the decision went purely to the fact that the Second Tribunal Member shared many of the concerns about the applicant's case that had been expressed to the Applicant by the First Member at the hearing. What the First Member did was to raise areas of concern to give the Applicant the opportunity to reply to them.
As far as the change between the First Tribunal Member and the Second Tribunal Member is concerned, it is submitted that this does not reveal reviewable error. I was referred to the decision of Liu v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 541, (2001) FCA 1362. It is a decision of the Full Court of the Federal Court constituted by Black CJ and Hill and Weinberg JJ.
Counsel for the Respondent submitted that the First Member's concerns, which were put to the Applicant, did not amount to anything because it was not the First Member who made the decision; it was the Second Member who made the decision based on the evidence presented to the first Tribunal hearing. He submitted it was clear, on the face of the reasons of the Tribunal, that the Member of the Tribunal understand the task that was before the Tribunal. He also submitted that s.424A does not require concerns by a Tribunal Member to be specifically communicated to an applicant in writing that the section relates to information and a concern is a perception or a conclusion about information. It has been held that a perception of inconsistency of evidence is not information for the purpose of s.424A. In respect of s.424 it is also the law that the Tribunal is not under a duty to inquire.
In reply, the Applicant submitted that she definitely believed that the Second Tribunal Member made the wrong decision and she complained that she had never received any letters from the First Tribunal Member.
The concerns of the Applicant relating to the reconstitution of the Tribunal deciding her application are perhaps understandable but to my mind, without any real substance. The very question of the situation where a Tribunal Member who conducted an oral hearing retires from a Tribunal before making a decision and the cases were reallocated to another Tribunal member was considered in Liu v Minister for Immigration and Multicultural Affairs, to which I have previously referred. In that case there were two matters which were heard together, although it is matter of Liu that is relevant to these proceedings.
The relevant sections of the Migration Act are ss.422, 425 and 428. Section 422 is particularly important as it provides for a reconstitution of the Refugee Review Tribunal due to the unavailability of a Member. I will read s.422 in its entirety onto the record:
1. If the Member who constitutes the Tribunal for the purposes of a particular review:
(a) Stops being a Member or
(b) For any reason is not available for the purpose of the review at the place where the review is being conducted, the principal Member must direct another Member to constitute the Tribunal for the purpose of finishing the review.
2. If a direction is given, the Tribunal as constituted in accordance with the direction, is to continue to finish the review and may, for that purpose have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.
3. In exercising powers under this section, the Principal Member must have regard to the objectives set out in subsection 420(1).
For that purpose it should be recalled that subsection 420(1) provides that the Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
Section 425 of the Migration Act requires the Tribunal to invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. There are certain exceptions to that set out in subsection (2) which are not relevant to this case.
Section 428 of the Migration Act allows the Tribunal to take evidence on oath or affirmation for the purpose of a review by allowing that power to be exercised by the Tribunal or on behalf of the Tribunal by another person who is authorised in writing to do so. It is clearly set out in Liu v Minister for Immigration and Multicultural Affairs that s.428 authorises the very procedure that took place in this case.
As to the Applicant's claim that she should in fact have received a second invitation to appear before the Tribunal as reconstituted; the Full Court of the Federal Court makes it clear that the Act does not support that submission. At paragraph 37 their Honours said:
There is no express provision of the Act that supports the appellant’s argument that Mr Keher (the second Tribunal member in Liu's case) was required by s 425 to issue a second invitation to the appellants to appear before him to present evidence and arguments. Section 425 itself is not in those terms and there is no express language to support a reading of the expression, "the Tribunal" appearing in s 425 as "the Tribunal as constituted by the member who makes the ultimate decision on the review", nor does s 422 provide that the reconstituted Tribunal is required to invite the applicant to appear before it, even subject to the exceptions in s 425(2).
Their Honours went on to say at [41]:
The fact that s 422 provides a power for the Tribunal to have regard to the record of the proceedings before the first Tribunal also tells against the right contended for by the appellants.
At [50] and [51] their Honours said:
50. It was argued that even if a reconstituted Tribunal is not always required to invite an applicant who has had a hearing to appear before the new Tribunal, it must do so if the Tribunal fails to have regard to the full record of the applicant's hearing. But in interpreting s 425 the same assumption that has to be made in relation to the discretionary power conferred by s 428 must be made in relation to the discretionary power to examine a record of the applicant's hearing conferred by s 422. In other words; the possibility that the discretion might not be properly exercised should not govern the interpretation of s 425.
51. In these circumstances the submission that the Tribunal was required to invite the appellants to appear before it again must be rejected.
In this case I note that when the Tribunal was reconstituted the Second Tribunal Member directed that a letter be forwarded to the Applicant dated 22nd July, pointing out that the member previously deciding the Applicant's case was no longer available and that the case had been constituted to another Member. Importantly, the letter concludes by saying:
The Member has asked me to advise you that since your hearings were held on 7 and 8 June 2004, if you wish to provide any update on the evidence already provided to the Tribunal, you may do so on or before Friday 6 August 2004.
That letter is not to be interpreted as inviting the Applicant to attend the further hearing to give oral evidence. It is, however, an invitation to the Applicant to provide further evidence in writing to update the evidence that was given at the Tribunal. The applicant did not avail herself of the opportunity to do so. It is apparent that if she had concerns about the reconstitution of the Tribunal, that she did not take the opportunity to express them at that time.
The Applicant claimed that there was no evidence that the Second Tribunal Member and listened carefully to the tape recording of the hearing and taken very careful note of all that transpired. I note that the Tribunal Member summarised the matters raised in the hearing on pages 66 through to 74 of the Court Book. It appears to be an extensive and detailed summary and to my mind I am satisfied that the Tribunal Member did listen carefully to the material. The Applicant has not provided any evidence of factual errors made by the Tribunal or of omissions of important or relevant parts of the evidence.
The Applicant's submission that it is impossible for the Second Tribunal Member to have the exact same opinions as the ones of the First Tribunal Member, if he had really listened carefully to the tape recording, to my mind cannot stand. What the Second Tribunal Member had was similar concerns about certain aspects of the Applicant's evidence to those raised by the First Tribunal Member and which the Second Tribunal Member heard on the tape.
The Tribunal did not have any obligation to put to the Applicant. The fact that the Second Tribunal Member had similar concerns to those raised by the First Tribunal Member in the hearing on the 7th and
8th June. Similar concerns are no more than an inference about certain facts. The facts had been put to the Applicant by the First Tribunal Member at the hearing. It would be inappropriate and certainly not required by the Legislation, for a second hearing to have been held so that the Tribunal Member could have put the same questions to the Applicant.
The fact is that the Tribunal was not satisfied about the credibility of the Applicant's evidence. Credibility is very much the province of the decision maker as is made quite clear in Re Minister for Immigration and Multicultural Affairs ex parte Durairajasingham. At paragraph 67 of that decision, McHugh J made it quite clear that the finding that evidence is implausible means no more and no less than that the decision maker did not accept the Applicant's evidence. It is not necessary for the Tribunal Member to go into the subset of reasons as to why the evidence is not accepted.
I am mindful of the obligation of the Court as set out in Yo Hang Chung v University of Sydney, a Federal Court decision from 2002, that where an applicant is unrepresented the Court must consider the material before it to see whether the applicant does in fact have an arguable case that the applicant was unable to articulate. I have read through the material thoroughly and I am unable to discern any jurisdictional error. There is, to my mind, no reviewable error and I am satisfied that the decision of the Tribunal is a privative clause decision as provided for by s.474 of the Migration Act and is not therefore a decision that is subject to judicial review. I dismiss the application.
There is an application for costs in the sum of $6,500.00. The Applicant has been unsuccessful and has expressed her disagreement with the Court's decision. She has the right to disagree and she has the right to appeal against the decision should she see fit. The Applicant has said that she will not pay the costs order. In my view, as the Applicant has been unsuccessful, it follows that the successful party should be entitled to an order for costs. The amount claimed is $6,500.00 on a party and party basis. I am informed by counsel for the First Respondent that the solicitor/client costs would exceed $10,000. That may well be so and I note that no sum approaching $10,000 is claimed.
Certainly there have been supplementary Court Books prepared and further reviews of the matter. It is an application where it was considered necessary for counsel to be briefed and in my view the briefing of Counsel was appropriate. I do intend to make a costs order in favour of the First Respondent. In my view, however, assessing the matter, I am prepared to allow a lump sum of $6,000.00.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 10 November 2005
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