SZFIQ v Minister for Immigration
[2005] FMCA 1765
•7 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFIQ v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1765 |
| 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 a well-founded fear of persecution on account of religion – membership of the Shouters underground church – denial of natural justice alleged – credibility – bias – statutory obligation on Tribunal to give applicant for review particulars of information the Tribunal considers would be the reason or part of the reason for affirming decision under review – where applicant relies on information provided with visa application for the purpose of denying its correctness – whether exception contained in s.424A (3)(b) of Migration Act 1958 (Cth) applies. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36, 424, 424A, 474 |
| Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 followed NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 SZBNK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 998 M55 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131 SZFKL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 931 |
| Applicant: | SZFIQ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3780 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 12 October 2005 |
| Date of Last Submission: | 12 October 2005 |
| Delivered at: | Sydney |
| Delivered on: | 7 December 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Mr Kennett |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Leave granted to join the Refugee Review Tribunal as Second Respondent.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3780 of 2004
| SZFIQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal that was made on 4th November 2004 and handed down on
1st December 2004. The Tribunal decided to affirm the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant a protection visa to the Applicant.
Background
The Applicant arrived in Australia from the People’s Republic of China on 15th May 2004. On 23rd June 2004 she applied for a protection
(class XA) visa on the ground of her religion. The Applicant claims to be a member of the Shouters denomination of the underground church, known as the Shouters Church or the Recovery Church. She claimed to be wanted by the Public Security Bureau in China.
A delegate of the Minister refused her application for a protection visa on 1st July 2004. On 30th July 2004 the Applicant applied to the Refugee Review Tribunal for review of that decision.
The Refugee Review Tribunal invited the Applicant to give evidence at a hearing on 3rd November 2004. The Applicant attended that hearing and gave oral evidence. She claimed that from July 2001 to April 2003 she actively assisted Priest Xia Xing He to spread the Gospel and develop the Shouters Church throughout Fujian Province in China. After the arrest of Priest He on 27th May 2003, the Applicant told the Tribunal she was subject to investigation by the local branch of the PSB.
The Applicant said that she had to leave her home town in July 2003 and so she moved to Xin’an County, Luoyang City, in Henan Province, where she lived until April 2004. During that time the Applicant said that she spread the Gospel and set up a Bible study group. Eventually, after three other members of her group were arrested, the Applicant left for Fujian and then escaped to Australia.
The Tribunal’s Decision
The Tribunal noted that the Applicant had arrived in Australia on a Chinese passport in the name W[1] and applied for a protection visa in that name. She attached a statutory declaration in that name to her application.
[1] The applicant’s name will not be published to comply with s.91X of the Migration Act 1958.
The Tribunal also noted that when the Applicant made her application to the Refugee Review Tribunal, she declared that W was not her real name. She said that her real name was H[2] and she gave a different date of birth. The Applicant claimed that she changed her name to avoid persecution by the Chinese authorities because of her involvement with the Shouters Church. The Applicant told the Tribunal that she had applied for a learner’s permit in the name she had used on her passport. She said that she thought she was told to use that name. She told the tribunal that when she applied she did not have any other identity at that time. Her passport and other identity documents in her real name were later brought to Australia by another person.
[2] See s.91X of the Migration Act.
The Tribunal was satisfied that the Applicant really is W, based on the genuine passport in that name, the fact that she used the name in her statutory declaration when she applied for a protection visa and continued to use that name whilst in Australia, when she was not under any threat of persecution. The Applicant even applied for a learner’s permit in that name.
The Tribunal did not accept that she was the person named H. The Tribunal found that the Applicant had purported to be someone whom she was not in order to enhance her claims for a protection visa. The Tribunal found that she was not a credible witness. The tribunal did find, for the purposes of Article 1 of the Convention, that the Applicant is a citizen of the People’s Republic of China.
The Tribunal was satisfied that the Applicant was able to leave China on a passport issued in her name without any difficulty and is of no interest to the PRC authorities. The Tribunal did not accept that the Applicant was on any “black list” or that she was wanted by the Public Security Bureau. The tribunal also did not accept that there was an arrest warrant out for the Applicant or that she would be arrested if she were to return to China.
The Tribunal did accept that the Applicant is a Christian, as she claims to be, and considered whether she would have a well-founded fear of serious harm on this more generalized basis. The Tribunal accepted the independent country information which showed that Christianity is growing in China at a speedy rate. Whilst the Applicant claimed a fear of harm on the basis of her Christianity, the Tribunal preferred the country information over the evidence of the Applicant, who the Tribunal found not to be a credible witness.
The Tribunal was not satisfied that there was a real chance that the Applicant would experience serious harm for a Convention reason if she were to return to China. The Tribunal was not satisfied that any subjective that the Applicant may have is a well-founded fear of serious harm for a Convention.
The Tribunal found that the Applicant did not satisfy the criterion set out in s.36(2) of the Act for a protection visa and affirmed the decision of the delegate not to grant a protection visa to the Applicant.
The Applicant’s Application
In her Amended Application filed on 20th April 2005, the Applicant seeks:
a)a declaration that the decision of the RRT was made in excess of jurisdiction and is therefore null and void;
b)an order of prohibition against the Respondent Minister;
c)A writ of certiorari quashing the decision of the Second Respondent Refugee review Tribunal; and
d)An order in the nature of mandamus remitting the matter to a differently constituted Refugee Review Tribunal.
The Applicant relies on the following grounds:
a)That there was an error of law in the decision constituting a jurisdictional error; and
b)That there was a procedural error in the decision constituting an absence of natural justice.
The Applicant provided 8 particulars of her claim:
i)That the Tribunal failed to examine her identity carefully;
ii)That the Applicant informed the Tribunal that she arrived on a false passport but the Tribunal did not take steps to investigate or examine all her documentary evidence, making a decision based on strong bias;
iii)That the Tribunal could have obtained information about the Applicant’s documentation from officers of the Department of Immigration & Multicultural & Indigenous Affairs based in China;
iv)That the Tribunal should have sought information from a relative of the Applicant who resides in Australia verifying the Applicant’s identity;
v)That the Tribunal breached s.424A of the Migration Act by not giving her the opportunity to give additional information to rebut the country information upon which the Tribunal relied;
vi)That the Tribunal breached s.424A of the Act by not giving her particulars of:
· The Tribunal’s concerns about her identity; and
· The independent country information.
vii)That the tribunal refused her application because of bias;
viii)That the Applicant is a refugee and the Tribunal did not consider all of her claims fairly and carefully.
The Applicant attended Court and emphasized the matters she had raised in her amended application. She said that the Tribunal had not taken any steps to verify her identity, and if the Tribunal was not able to establish her identity it could not investigate her case properly.
The Applicant attributed this failure by the Tribunal to bias.
The Applicant told the Court that the Tribunal quoted a lot of country information but none of it was about the Shouters. She said that she was not applying for refugee status for her belief but because she had been persecuted by the Chinese authorities.
The Respondent’s Submissions
For the Respondent Minister, Mr Kennett of counsel submitted that the Applicant’s assertions that the Tribunal failed to investigate or examine the material about her identity or raise its concerns with her about her identity cannot stand, because the Tribunal member discussed the issue with the Applicant at some length. He raised his concerns about the Applicant’s identity and her credibility during the hearing in some detail.
Mr Kennett also submitted that (in summary):
a)the fact that the Tribunal reached a conclusion with which the Applicant disagrees is not a sufficient basis for asserting that the Tribunal failed to turn its mind to the issue or was biased;
b)
The Tribunal was not under any duty to use its powers under sections 424 or 427 of the Act to investigate the Applicant’s identity or the veracity of the documents which she proffered
(see Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]).
c)The Tribunal clearly did raise its concerns with the Applicant during the course of the hearing, so it did comply with the general law obligations of procedural fairness;
d)Whilst discussions at the hearing would not satisfy the obligation in s.424A(1), if it arose, the obligation only arises in respect of information and not about the Tribunal’s concerns about the implications of what it has been told. The relevant information consisted of material supplied by the Applicant to the Tribunal, asserting and seeking to establish the identity she claimed was hers, together with the material provided which she was expressly disavowing. With the Applicant having raised the issue of her identity before the Tribunal, and having referred to the claims she made earlier, that whole body of material, he submitted, should be regarded as coming within s.424A(3)(b) and therefore outside the scope of s.424A(1).
e)
As to the alleged failure by the Tribunal to provide the Applicant with the independent country information upon which it relied,
s.424 is discretionary and does not impose any obligation on the Tribunal. Country information comes within s.424A (3) (a) and is not required to be disclosed under s.424A(1).
Conclusions
I am satisfied that the Tribunal did examine the question of the Applicant’s identity carefully. A significant part of the reasons for decision consists of the Tribunal’s examination of the Applicant about her false identity and her real identity.
There is no evidence of bias. An allegation of bias is a serious matter involving personal fault on the part of the decision maker.
The allegation is not to be lightly made and must be clearly alleged and proved (see SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1076 at [27]; SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [43]).
The circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme. This is especially so where all that the Applicant relies upon is the written reasons for the decision under review (see SBBS v MIMIA (supra at [44]); SBAU v MIMIA (supra at [28]). There is nothing in the reasons for decision that shows any evidence of bias or bad faith on the part of the Tribunal member.
The tribunal was under no obligation to carry out its own investigation under s.424 or s.427 of the Act to verify or establish the Applicant’s claims. It is up to the Applicant to provide evidence that will enable the Tribunal to be satisfied that she meets the criteria for a protection visa.
It is clear that the Tribunal did not find the Applicant to be a credible witness, especially about her identity. There was evidence that would allow the Tribunal to form that view, and assessing a witness’s credibility is a task solely for the decision maker.
There is one issue that needs clarification, and that is whether the RRT was obliged to comply with the provisions of s.424A(1) by giving written particulars of the information about the Applicant’s passport and statutory declaration about in the name W and the application using the name H, which she claimed to be her real name.
That information was put to the Applicant by the Tribunal member orally during the Tribunal hearing, so there was no failure to comply with any common law duty of procedural fairness. However,
as Jacobson J pointed out in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 at [4]:
However, the suggestion that no breach of s.424A occurs if an applicant has otherwise been given procedural fairness was rejected by a majority of the Justices in SAAP.[3] Their Honours pointed to the imperative nature of the section and the mandatory obligation to provide written particulars of adverse material as well as an opportunity to comment on it.
[3] SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2000] HCA 24
In NAZY, the information in question was the answer to the question in the protection visa application, which was given by the applicant for the purpose of the application for review by the RRT. Jacobson J noted that in Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27, the Full Court of the Federal Court held that information to which s.424A(3)(b) refers is information given by an applicant to the RRT for the purpose of the application for review, and not to information given on the original application for a protection visa.
His Honour, applying MIMA v Al Shamry, found in NAZY that the information given in that case did not fall within the exception in
s.424A(3)(b). The RRT decision indicated that it could not be said that the appellant[4] himself provided the information in the protection visa to the RRT as part of his application, but that the Tribunal member raised the issue of the protection visa application form and the answers contained in it during questions asked of the applicant during the course of the RRT hearing. His Honour found that the exception contained in s.424A(3)(b) was not enlivened. The decision in NAZY is an appeal from the Federal Magistrates Court and therefore binding on this Court.
[4] The applicant was “the appellant” in NAZY because the case was an appeal from a Federal Magistrate.
SZBNK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 998 is also an appeal from a decision of a Federal Magistrate where s.424A was considered in relation to information given by the appellant for the purpose of a protection visa. Lindgren J distinguished NAZY on the facts, because in SZBNK the information contained in the application for the protection visa was also supplied by the appellant to the Tribunal for the purpose of his application for review.
His Honour, at [28], upheld the second basis on which the Minister relied for distinguishing NAZY, namely that the appellant, through his migration agent, had written to the Tribunal making a submission in support of the application for review. Subject to a few minor adjustments, the migration agent’s letter repeated the content of the appellant’s statutory declaration that had accompanied his application for the visa. His Honour held that, even on the assumption that the decisions in Al Shamry and NAZY were correct, the information in the case before him fell within the area of s.424A(3)(b).
In M55 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131, an appeal from the Federal Magistrates Court, Gray J considered the situation of a passport and some documents relating to the applicant’s family’s financial circumstances, which had been used by the Tribunal in affirming the delegate’s decision.
His Honour held that it was an error to hold that provision of the passport as part of the original application for a protection visa was sufficient to exclude the operation of s.424A(1). However, he went to say, at [25]:
That is not the end of the matter. By means of the written submission of his counsel to the Tribunal, the appellant relied expressly on the terms of his protection visa application.
He informed the Tribunal that the detail of the claims was set out in the protection visa application and his earlier statements.
He thereby invited reference to the copy passport, which was attached to the application form. There can be little doubt that the appellant intended that the Tribunal should look at this material. In my view, he thereby provided that passport, and the information to be derived from it, to the Tribunal for the purpose of the application for review. This was sufficient for the appellant to have been taken to give the information contained in the copy passport to the Tribunal for the purpose of his application for review, and therefore for that information to fall within
s. 424A(3)(b) of the Migration Act. This provision operated to exclude the copy passport from the Tribunal’s obligations pursuant to s. 424A (1) and (2).
Gray J held that the documents relating to the financial circumstances of the appellants’ family, which accompanied an application for a student visa, were plainly not given to the Tribunal for the purposes of his application for review. At [28], his Honour said:
They were not given by him for the purposes of his application for a protection visa. Accordingly, on no view of s. 424A (3) (b) were those documents excluded from the operation of s. 424A (1).
In SZFKL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 931, Madgwick J considered the Tribunal’s finding that relied on inconsistencies between the written claims submitted with the visa application and the appellant’s evidence at the Tribunal hearing. His Honour described the situation in [7]:
However, these inconsistencies were brought to the appellant’s attention during the Tribunal hearing and he confirmed to the Tribunal member that he was satisfied of the accuracy of the information in his visa application and the supporting statement. Thus, all relevant information relied on by the Tribunal, as distinct from its reasoning processes, which did not involve reference to other factual material of substance, appears to be information that the appellant gave to the Tribunal for the purpose of the application to the Tribunal. That is to say, s. 424A of the Act would not apply because any possible information falls within the purview of subs (3) (b) as being information ‘that the applicant gave for the purpose of the application.’
SZFKL is also an appeal from a decision of a Federal Magistrate. Like the decisions in NAZY, SZBNK and M55, SZFKL is binding on the Federal Magistrates Court. With the greatest of respect to their Honours, finding a safe path through all of these binding decisions needs to be approached with the same degree of delicacy as tip-toeing through a minefield. I understand from the decision in SZBNK that the Minister has requested that a Full Court hear the appeal from the Federal Magistrates Court in SZEEU v Minister for Immigration [2005] FMCA 360 in order that the Minister may have the opportunity to argue that the decision in Al Shamry was in error on this issue, but I am not aware that the appeal has yet been heard or decided.
Until a Full Court decision on that point has been made, my understanding is that the decision in SZFKL cannot, with respect, stand easily beside the decisions in NAZY or SZBNK. The situation appears to me to be this:
a)
Where an applicant expressly relies on information provided in or with the applicant’s visa application as part of his or her application for review, then that information falls within
s.424A(3)(b) (NAZY at [39] – [40]; SZBNK at [28]; M55 at 25);
b)
Where information is given for the purpose of an application for a visa that is not the application for a visa that is the subject of the review, then that information does not fall within the ambit of
s.424A(3)(b);
c)Where the Tribunal puts the information to the applicant and the applicant informs the tribunal that the information is correct, on the authority of SZBNK at [26] and [27] and NAZY at [11] and [39] the applicant cannot be said to have provided that information for the purpose of the review and s.424A (3) (b) would not be enlivened. On the authority of SZFKL at [7], however, the information would fall within s.424A (3) (b).
In my view, the case before me falls within the area covered by M55 and SZBNK. The information about the Applicant’s passport and protection visa application was given by the Applicant to the Tribunal for the purpose of saying that the information related to a false identity, W, and not her correct identity, which she claimed was H. The fact that the information was given for the purpose of denying its correctness does not, to my mind, take it out of the ambit of information covered by s.424A(3)(b). It is still information given to the Tribunal by the Applicant for the purpose of the review.
There is no jurisdictional error. I have considered the material myself, mindful of the fact that the Applicant is not legally represented. I can discern no reviewable error. The decision is a privative clause decision as defined in s.474 of the Act.
The application will be dismissed with costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 25 November 2005
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