SZFLR v Minister for Immigration
[2006] FMCA 1135
•29 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFLR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1135 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.65, 91X, 422B, 424A, 425, 426A, 483A |
| Yo Han Chung v University of Sydney & Ors [2002] FCA 186 Minister for Immigration v SGLB (2004) 207 ALR 12 SAAP v Minister for Immigration [2005] HCA 24 SZCIA v Minister for Immigration [2006] FCA 238 SZEGX v Minister for Immigration [2006] FCA 166 |
| Applicant: | SZFLR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG81 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 24 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 29 August 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Counsel for the Respondents: | Ms S Kaur-Bains |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application filed on 11 January 2005 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to this application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG81 of 2005
| SZFLR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL 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 11 January 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 25 November 2004 and handed down on 17 December 2004, affirming a decision of the delegate of the first respondent made on 12 August 2004, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZFLR”.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
Background
The Tribunal decision of Professor Samuel Blay, reference N04/49847, provides the following background information. The applicant is a citizen of the People’s Republic of China (“the PRC”). She arrived in Australia on 23 June 2004. On 2 August 2004, she lodged an application for a Protection (Class XA) visa with the Department of Immigration under the Act. On 12 August 2004, a delegate of the Minister refused to grant a protection visa and on 14 September 2004, the applicant applied to the Tribunal for review of the delegate’s decision.(Court Book (“CB) 66)
On 29 October 2004, the Tribunal wrote to the applicant advising that it had considered all the material before it in relation to her application, but was unable to make a favourable decision on that information alone. It invited the applicant to give oral evidence and present arguments at a Tribunal hearing on 24 November 2004. On
9 November 2004, the applicant replied in writing advising the Tribunal that she did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it.(CB 66)
The Tribunal’s Findings and Reasons
A convenient summary of the Tribunal’s findings and reasons are contained in the respondent’s written submissions prepared by Ms Kaur-Bains and I adopt paragraphs 7 to 13 of those submissions:
7.The Tribunal recorded in its decision the fact that the applicant did not wish to attend a hearing of the matter (CB:66, 1st paragraph).
8.The Tribunal proceeded to determine the application on the information it had before it, being the information provided by the applicant in support of her application for a protection visa and the independent country information.
9.The Tribunal’s decision recorded the applicant’s claims as set out in her statement accompanying the protection visa application. The applicant claims that she is a Christian and that she fears persecution on the grounds of her religious beliefs if she returns to China. The applicant stated that:
a. She graduated from Dongzhang Senior High School in 1993 and became employed in a tea plantation as a technician;
b. In January 2000 a friend introduced her to an underground church which was organised by a Mr Huang, the vice-manager of the tea plantation, and from that period she attended church regularly on Saturday evenings;
c. She was made an assistant to the church co-ordinator and as such her main duties included contacting other church members, delivering messages to other churches and acting on behalf of the church co-ordinator while he was away;
d. In 2002 the branch co-ordinator asked her to set up a branch church in another village and she was entrusted with the running of that church;
e. She recruited many converts to that church because she had many relatives and knew many people in the village;
f. In late November 2002, the police raided her church and arrested the applicant for being the leader of an unregistered church;
g. She was detained for 12 hours, but managed to escape from detention;
h. She was advised by Mr Huang, the vice-manager of the tea plantation, that she could not come back to work because the police were looking for her and had visited her workplace at the plantation;
i. In March 2004, the police later came to her house, the applicant left and took refuge in Guangzhou;
j. The night the police came to her house, the applicant left and took refuge in Guangzhou;
k. In June 2004, she applied for a visa to come to Australia.
10.The claim set out in the Tribunal’s decision accurately reflects the claims made by the applicant in her statement in support of her protection visa application: (see CB:34-36)
11.The Tribunal having read all the material then commenced to evaluate its contents and weight (See CB:71, 2nd and 3rd paragraph). It was in the context of evaluating the applicant’s claims as set out in her statement, that the Tribunal noted:
a. That in its opinion it was implausible that if the applicant had escaped from detention in November 2002 that the officials from the Public Security Bureau would then have visited the applicant at her home in March 2004; and
b. That the Tribunal found it implausible that Mr Huang who was the main head of the church could have remained free of any problems with the authorities while the applicant was subject to harassment and detention.
12.In making the comments outlined the Tribunal was not making findings of fact from which it drew adverse inferences as to the applicant’s credibility. The Tribunal was simply outlining matters that it found troubling and noted that if the applicant had accepted the Tribunal’s invitation then she could have explained such implausibilities. The Tribunal then found that without further information and explanation from the applicant, on the evidence, it could not be satisfied that the applicant was either a Christian in China or that she was subject to persecution because of her religious beliefs.(CB: 72) Accordingly, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a convention reason arising from her claims: (CB: 72, last paragraph).
13.This conclusion did not turn on the Tribunal not accepting that the applicant was a witness of truth, it simply turned on the Tribunal not being able to reach the specified mental state because of the perceived inadequacies in the information. The Tribunal’s decision did not turn in anyway on any findings of fact that the applicant alleges were made by the Tribunal.
Application for Review of the Tribunal’s Decision
On 11 January 2005, the applicant filed in this Court an application for review under s.39B of the Judiciary Act. On 27 April 2005, the applicant filed an amended application which contained the following grounds:
1.The Tribunal committed jurisdictional error of law in that it made erroneous findings of fact from which it drew adverse inferences as to the applicant’s credibility which formed the basis of its ultimate decision.
Particulars
i) In making the decision under review, the Tribunal found that:
“The applicant alleges that Mr Huang warned her that the authorities were after her for running the church. Mr Huang himself seems to have remained in charge of the parent church. There is no indication that Mr Huang lost his position as vice-manager of the tea plantation, or that the authorities harassed him. The Tribunal finds it implausible that Mr Huang who is the main head of the church could have remained free of any problems with the authorities while the applicant was subject to harassment and detention. RD 72.
This finding was erroneous insofar as the evidence before the Tribunal was that the applicant was told by Mr Huang that the police had searched for her at her work: RD 35. There was no evidence to support any finding or inference to the effect that Mr Huang had retained his position as vice-manager at the tea plantation nor that he had escaped harassment from the authorities.
ii) In making the decision under review, the Tribunal found that:
“In the opinion of the Tribunal it does not seem plausible that if she indeed escaped from detention in November 2002, the officials from the Public Security Bureau would then visit her home in March 2004 to order her to present herself at their office the following morning. RD 72.
This finding was erroneous insofar as the Tribunal assumed that the applicant unlawfully escaped detention in November 2002 when the evidence before the Tribunal was consistent with her arranging lawfully to avoid further detention at that time: RD 35.
2.The Tribunal committed jurisdictional error of law in that it breached the requirements of procedural fairness by failing to disclose to the applicant that it would be making a decision adverse to her application unless she accepted the invitation to attend the hearing to provide additional information.
Particulars
If the applicant had appreciated that the Tribunal considered her written statement to be “only her bare allegations and very little information which do not assist the applicant” she would have attended the hearing so as to provide further evidence and argument in support of her claims.
Submissions
The applicant appeared as a self-represented litigant with the aid of a Mandarin interpreter. The applicant confirmed that she had not prepared or filed any written submissions and that she intended to rely upon the amended application. She declined the invitation to make oral submissions in support of her application.
Ms Kaur-Bains, appearing for the respondents, filed written submissions which were supplemented by oral submissions during the hearing. In respect of the applicant’s first ground, Ms Kaur-Bains submits that the applicant seeks to argue that the Tribunal committed jurisdictional error because there was no evidence to support findings of fact. Further, that the Tribunal drew adverse inferences about the applicant’s credibility, which formed the basis of its ultimate decision. The applicant identified two of these alleged findings of fact in support of her claim:
The Tribunal finds it implausible that Mr Huang who is the main head of the church could have remained free of any problems with the authorities while the applicant was subject to harassment and detention.(particular one of ground one)
In the opinion of the Tribunal it does not seem plausible that if she [the applicant] indeed escaped from detention in November 2002, the officials from the Public Security Bureau would then visit her home in March 2004 to order her to present herself at their office the following morning.(particular two of ground one)
Ms Kaur-Bains submits that the High Court in Minister for Immigration v SGLB (2004) 207 ALR 12 (“SGLB”) discussed that jurisdictional error is established when there is no evidence for a decision. If there is material before the Tribunal which allows it to reasonably draw an inference in support of a finding, then a ground such as this fails: SGLB at [1], [39] and [41]. The Court cannot form its own view of the evidence. If there is no evidence for a particular finding of fact, then that finding was an essential condition precedent to the discharge of the obligation under legislation: SGLB at [37].
In SGLB the applicant contended that there was no evidence before the Tribunal from which it could find that the applicant suffered from Post Traumatic Stress Disorder. The majority of the High Court, Gleeson CJ, Gummow, Hayne and Callinan JJ, held that nothing in the Act made the question of whether or not the applicant suffered from Post Traumatic Stress Disorder a precondition to the Tribunal’s exercise of jurisdiction. Therefore, no jurisdictional error arose in that case.
Ms Kaur-Bains submits that in respect of the matter before this Court:
a)There was no finding of fact made by the Tribunal as contended by the applicant. The reasons disclose that the Tribunal merely evaluated the evidence without make a finding of fact;
b)The applicant cannot establish that the finding was an essential condition precedent to the discharge of the obligation under the Act. Therefore, if there was any error it was not a jurisdictional error;
Ms Kaur-Bains also submits that the Tribunal did not rely on findings of fact, but rather on a lack of plausible information regarding the applicant’s religious beliefs and activities. If the Court finds that there was jurisdictional error, it should exercise its discretion and decline relief.
In respect of the second ground, the applicant contends that the Tribunal should have disclosed to her that it would make a decision adverse to her, unless she accepted the invitation to attend the hearing and provided additional information. Ms Kaur-Bains submits that as s.422B of the Act applies to this case, the Tribunal’s obligation to invite the applicant to a hearing is set out in s.425. The Tribunal wrote to the applicant as required (CB 58-59):
a)Informing the applicant that it had considered the material before it in relation to the application, which included the applicant’s statement and other evidence;
b)Informing the applicant that it was unable to make a decision in the applicant’s favour on this information alone;
c)Inviting the applicant to a hearing before the Tribunal to give oral evidence and present arguments.
The letter was clear on its terms that the Tribunal was unable to make a decision in the applicant’s favour on the information it had. The applicant, with the benefit of the assistance of a migration adviser, informed the Tribunal that she did not wish to attend the hearing. The Tribunal, pursuant to s.426A of the Act, was not required to take any further steps and could proceed to make a decision. The proper construction of the Tribunal’s reasons is that it was simply not satisfied of the relevant matters.
When a decision-maker is simply not satisfied that the applicant meets the criteria for a grant of a protection visa, it is entitled to refuse the grant of the visa: SJSB v Minister for Immigration [2004] FCAFC 225 at [15] per Ryan, Jacobson and Lander JJ. Their Honours stated at [14] of that decision that s.65(1) of the Act:
…does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied…
Further, Ms Kaur-Bains submits that the Tribunal did not fail to comply with s.424A of the Act: SZCIA v Minister for Immigration [2006] FCA 238 per Allsop J at [11] and [12]:
11. The Tribunal's obligation in relation to the grant or refusal of visas is contained within ss 36 and 65 in particular of the Migration Act. If the Tribunal is not satisfied that Australia has protection obligations in relation to the applicant the Tribunal must refuse the visa. Thus, it is necessary to understand why it was that the Tribunal reached the view that it did in relation to this applicant's claims, and in particular whether any information was the reason or a part of the reason for the decision.
12. In my view the reason for the decision was, and was only, that the Tribunal having read all the material and having evaluated its content and weight was unable to reach a specified mental state. The reason or the decision was simply, and no more than, the absence of material which it required to reach a state of satisfaction, no findings of fact remain. The Tribunal concluded that on the material the absence of information was such that it was not able to reach the requisite state of satisfaction. In SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195, I said the following at paragraph 29, which is equally applicable to the matter here:
On one view it might be said that since the only information that was before the Tribunal about the appellant's circumstances was information not withdrawn from the operation of section 424A (1) by section 424A (3)(b) it must be that that information was the reason or part of the reason for the decision. That is too simplistic an analysis ... whilst in some cases an 'unbundling is necessary' in order sensibly to apply section 424A to the expressed reasons of the Tribunal, here the reason for the decision is plain. The Tribunal having read all the material and having evaluated its content and weight was unable to reach a specified mental state. It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply, and no more than, evaluative conclusion founded on the perceived inadequacy of the information in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was a reasonable part of the reason for the decision. It was the lack of requested further assistance and explanation that was the reason.
In a recent decision of Moore J in SZEGX v Minister for Immigration [2006] FCA 166, His Honour addressed what constitutes information that should be supplied to an applicant under s.424A. A statement by the Tribunal that it has not reached a reasonable level of satisfaction that the applicant has a well-founded fear of persecution, is not necessarily a reference to information in the s.424A sense. In coming to the conclusion that the reasonable level of satisfaction was not met, save reference to any material, the Tribunal was not obliged to engage s.424A.
Ms Kaur-Bains submits that if the Tribunal did make a finding of fact, they were not part of its reasons and no jurisdictional error is disclosed by this ground.
Conclusion
The applicant appeared at the hearing as a self-represented litigant, which places a further obligation on this Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. I am satisfied that none of the grounds identified can be sustained. Neither is it apparent that any other ground of review exists that suggests the Tribunal made a jurisdictional error in its decision-making process. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 17 August 2006
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