SZFQU v Minister for Immigration
[2005] FMCA 549
•29 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFQU v MINISTER FOR IMMIGRATION | [2005] FMCA 549 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – Notice of Objection as to Competency – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.91X, 474
Judiciary Act 1903 (Cth), s.39B
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1994) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Ngu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 21
| Applicant: | SZFQU |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 321 of 2005 |
| Delivered on: | 29 April 2005 |
| Delivered at: | Sydney |
| Hearing date: | 13 April 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Solicitors for the Respondent: | Mr L Leerdam of Phillips Fox |
ORDERS
The Notice of Objection to Competency filed on 2 March 2005 is upheld.
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 321 of 2005
| SZFQU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 20 January 2000, affirming the decision of the delegate of the respondent (“the delegate”) made on 26 August 1998 to refuse to grant the applicant a protection visa.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZFQU”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 16 January 1998. On 20 February 1998 she lodged an application for a protection visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 26 August 1998 the delegate refused to grant a protection visa and on 15 September 1998 the applicant applied to the Tribunal for a review of the delegate’s decision.
The applicant claimed she was born in Fujian, China in November 1976. She stated she was educated from 1983 to 1994 and worked for a financial association from August 1994 to November 1997 (Court Book p.16) (“CB”). The applicant claimed she resided at the one address in Fujian from 1987 until 1998 (CB p.15). She claimed that in October 1995 she and two friends established an underground pro-democracy organisation which was the Fujian [Branch] of Federation for a Democratic China (CB p.18). The applicant claimed she arrived in Australia on a false British National (Overseas) passport issued by the Hong Kong Government and that she had used a false passport because she was wanted by the local Public Security Bureau (“the PSB”) in China owing to her “political opinions and actions” (CB p.17).
The applicant claimed that the Fujian Branch of the FDC had recruited new members and had meetings. In January 1996 the Federation was formally established and in April 1996 the Federation organised a public rally to which 100 people attended. As a result of this activity, the applicant claimed she and two other rally organisers were detained by the PSB for one month and were interrogated many times and finally forced to make a confession. The applicant claimed she was arrested by the PSB in June 1997 because she had been distributing handbills promoting the Federation’s activities. She stated she was detained for three months and after her release she was required to report to the PSB each week. After further arrests of fellow group members in October 1997, the applicant claimed she escaped to a small village in the Guangdong province where she obtained her false documentation and left China in January 1998 (CB pp.80-81).
The Tribunal’s findings and reasons
The Tribunal’s decision (CB pp.84-87) was summarised by the respondent’s solicitor in his submissions which I have adopted and have set out below:
a)When the Tribunal asked the applicant how she obtained the notarial certificate as it post-dated her arrival in Australia, she stated she had asked a friend to arrange it. The Tribunal then asked how this was possible if she was wanted by the PSB and the applicant stated the document was not official and had been paid for. The Tribunal put to the applicant that if she feared the PSB she would not have applied for a travel pass to Hong Kong in her own name and this had indicated the PSB was not interested in her. The applicant claimed the Tribunal did not understand the situation and that she could enter Hong Kong on the subway. The Tribunal then put to the applicant that her explanation made no sense (CB pp.83-84).
b)At the hearing, the Tribunal requested the applicant produce her passport. This was done reluctantly and the Document Examination Unit subsequently confirmed that the passport was genuine but the photograph of the applicant was not the one issued by the authorities. The Tribunal noted that the fact the applicant’s passport had been photosubstituted could mean that it was intentionally done by her or another person to give the impression that it was false (CB p.85). The Tribunal commented that the applicant’s Hong Kong Identification Card had a different name and displayed a photograph believed by the Tribunal to be the applicant. The Tribunal noted that the mainland China ID card had a photograph that did not resemble the applicant and the notarial certificate was clearly a forged document. The Tribunal took into account all of the applicant’s documents and did not accept her claims as to her identity but found she was the person named as the holder of the British National (Overseas) passport and a resident of Hong Kong (CB p.85).
c)The Tribunal found that the applicant had been misleading and was therefore not a credible witness. The Tribunal also found that, as the applicant had made claims in relation to Hong Kong, the applicant did not have a well-founded fear of persecution for Convention reasons. The Tribunal also considered whether, if the applicant was from mainland China, as she claimed, she would fall within the Convention definition of a refugee (CB p.85).
d)When the Tribunal asked the applicant what the purpose of the pro-democracy group she was associated with, she claimed “village leaders embezzled money through the backdoor especially in the holiday season” and the group felt they had to eliminate corruption. (CB p.83). When the Tribunal asked the applicant abut her pro-democracy activities in Australia, she said she had not contacted any pro-democracy organisations in Australia because she could not locate them. The Tribunal noted that others had been able to contact such organisations but the applicant claimed they would not trust her because she was “too young”. The applicant also claimed that she did not have an ID card to prove who she was (CB p.86). The applicant also told the Tribunal that she was a member of the CAD but could not tell the Tribunal what CAD stood for and informed the Tribunal that the CAD had “dissolved” (CB pp.82,86). The applicant later claimed she did not do anything in Australia because she feared getting caught and being sent back to China (CB p.86).
e)The Tribunal also questioned the applicant as to why she had not collected any of the registered mail sent to her by the Tribunal. The applicant claimed she only had a passport in the false name and the post office would not accept this form of identification as the letters were addressed to the applicant’s alleged name. The Tribunal put to the applicant that it did not accept her evidence and asked for her real address. The applicant replied that she had changed and address and had a friend who could prove it (CB p.82).
f)The Tribunal noted that it was reasonable to expect that the applicant would have continued her claimed political activity in Australia. Further, it did not accept her reasoning as to why she had not taken part in pro-democracy activities in Australia. The Tribunal found the applicant’s claim that she did not have ID to identify herself as a “ridiculous statement” when, in fact, she had two sets of identification (CB p.86). The Tribunal also found the applicant’s claims relating to the CAD as too “ridiculous to believe” (CB p.86).
g)The Tribunal considered the applicant’s claims about establishing the Fujian Branch of the FDC and found that it was doubtful that someone with such a misunderstanding about democracy could lead such an organisation. The Tribunal noted the applicant’s “reasons for establishing the organisation were vague and simplistic in the extreme”. The Tribunal did not accept the applicant had ever been a part of such an organisation as the FDC (CB p.86).
h)In relation to the applicant’s alleged arrests, the Tribunal found that it was unlikely that the PSB would release her without charge if they suspected she was involved in anti-government activities. The Tribunal found the applicant’s claims were manufactured in order to advance her visa application and that she was not a credible witness. The Tribunal, therefore, concluded that the applicant did not have a well-founded fear of persecution for reasons of a Convention ground (p.86).
Application for review of the Tribunal’s decision
On 7 February 2005 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 23 March 2005 the applicant filed an amended application which contained the following grounds:
“1.The Tribunal earlier in the report in regard to ‘independent evidence’. The Tribunal make such of the fact that my submitted no evidence yet.
2.The Tribunal decision was unfair. Unreasonable and that my evidence to it was truthful.
3.The Tribunal was in error law those findings were open to it from my side fact and evidence.
4.The Tribunal member is substituting his view. This is no more than a personal judgmental view without any foundation in evidence.
5.The Tribunal failed to consider any properly exercise its discretionary power under of the Migration Act 1958.” (Errors included)
Notice of objection to competency
On 2 March 2005 the respondent filed a Notice of Objection to Competency on the following grounds:
“1.Subsection 477(1A) of the Migration Act 1958 provides that an application for review must be lodged with a Registry of the Court within 28 days of the notification of the decision.
2.The applicant was notified by letter of the RRT decision on
20 January 2000 and she filed an application for judicial review on 7 February 2005 which has not been filed within 28 days of notification of the decision as required by subsection 477(1A) of the Act.”
On the same date, the respondent filed an affidavit of Adele Alex, Solicitor sworn on 1 March 2005 to which was attached a letter marked “A” from the Tribunal dated 20 January 2000 which notified the applicant the Tribunal handed down its decision on 20 January 2000 and advised the applicant of the necessary steps to be undertaken if she was to seek a review of the decision.
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Applicant’s submissions
The applicant appeared self represented with the aid of a Mandarin interpreter. The applicant had attended a directions hearing on
15 February 2005 where she consented to Short Minutes of Order requiring her to file and serve an amended application giving complete particulars of each ground of review to be relied upon by 25 March 2005. A further order was made requiring the applicant to file and serve any affidavit containing additional evidence to be relied upon, including a transcript of the Tribunal hearing, by 25 March 2005 together with a requirement to file and serve any written legal submissions and list of authorities fourteen days prior to the hearing. The applicant complied with the order to file an amended application but did not comply with the order to file and serve additional evidence.
At the directions hearing the applicant indicated she wished to participate in the Pilot RRT Legal Advice Scheme (NSW) to assist in her preparation for the Court hearing. A panel adviser was assigned to the applicant to provide advice.
When the applicant was invited to make any oral submissions she stated she would rely on her amended application and indicated she did not wish to comment further. In reply to the respondent’s submissions, the applicant indicated she was telling the truth in respect of the false passport and that she was forced to use it as she was unable to get a passport from the People’s Republic of China. The applicant indicated she did not participate in any pro-democracy activities since her arrival in Australia for the reasons she was new, afraid and concerned that her participation in any activities might bring her to the attention of the authorities.
Respondent’s submissions
Mr L Leerdam, Solicitor appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:
a)The application for review was not filed within 28 days of notification of the Tribunal’s decision and the Court does not have the competence to review a decision which has been found to be a privative clause decision. The applicant was notified by letter of the Tribunal’s decision on 20 January 2000 and filed an application for judicial review of the decision on 7 February 2005. The filing was not within 28 days of notification of the decision as required by subsection 477(1A) of the Act.
b)The Tribunal’s decision ultimately turned on the applicant’s lack of credibility. The Tribunal found that the applicant’s claims were manufactured in order to advance her visa application and that she was not a credible witness. It therefore concluded that the applicant did not have a well-founded fear of persecution for Convention reasons. Credibility findings by the Tribunal, where such findings are reasonably open on the evidence before it, are properly the function of the decision-maker and generally not susceptible to judicial review by the Court. Further, according to McHugh J in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham at [67], detailed reasons are not required. His Honour noted:
“However, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged.”
c)A breach of natural justice does not arise in this particular case as the issue in relation to forgery and the applicant’s identity was raised with her at the hearing (CB p.84). In WACO v Minister for Immigration & Multicultural & Indigenous Affairs, the Tribunal made clear to the applicant at the hearing doubts it held about his credibility. In response, the applicant provided certain documents to the Tribunal after the hearing which it rejected as fabrications. Whilst acknowledging that the rejection of documents based on the adverse view taken of the applicant’s credit did not involve an error of law (as per McHugh and Gummow JJ in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 at [49]), the Full Court found (at [42]) that the Tribunal had a duty to raise clearly with the applicant the critical issues on which his or her application might depend and that the failure to do so amounted to a breach of natural justice.
d)On a fair reading of the Tribunal’s decision, Counsel submitted, there was no reviewable error and it was open to the Tribunal to reach its decision on the evidence before it. Counsel further submitted that, as no error was disclosed in the Tribunal’s reasons or reasoning process, the decision was a privative clause decision and the Notice of Objection to Competency should be upheld. In Ngu v Minister for Immigration & Multicultural & Indigenous Affairs, the Full Court upheld the judgment of Nicholson J at first instance, to the effect that an appeal against a privative clause decision, lodged outside the mandatory time limits in s.477, is incompetent if a ground of review cannot be made out (pursuant to the High Court’s judgment in S157/2002.
Reasons
It was the respondent’s submission that the Tribunal’s decision only turned on the applicant’s lack of credibility in that the applicant’s claims were manufactured in order to advance her visa application. On the applicant’s arrival in Australia she presented the passport obtained in Hong Kong in the form of a British National (Overseas) passport. However, the applicant claimed this was not her true identity and she was in fact a citizen of the People’s Republic of China and her name and age were both different from that appearing on her Hong Kong passport. The Tribunal set out the detailed steps it took in the assessment and evaluation of the validity of the applicant’s documentation including the Hong Kong passport and identity papers and the two identity documents issued by the People’s Republic of China (CB p.83). This assessment and evaluation included an examination by the Documentation Examination Unit of the Department as to the validity of the Hong Kong passport. The results of this careful identification process was put to the applicant during the Tribunal hearing providing her with the opportunity to respond to the concerns of the Tribunal regarding the falsification of the documents. It was submitted that the process adopted by the Tribunal was fair to the applicant and it accorded her natural justice as required under the Act.
In the “Findings and Reasons” section of the Tribunal’s decision the following statement is made:
“I have carefully considered the evidence relating to the applicant’s identity and note that the Document Examination Unit has stated that the British National (Overseas) passport has indeed been tampered with and photosubstituted and that the base document is a genuine British National (Overseas) passport. The fact of it being photosubstituted does not necessarily nor automatically however mean that it has been so done by a person other than the real holder. It is possible that it has been done to give the impression that it is false. The applicant has other identity documents, significantly one is a Hong Kong identity card also in the name of [the applicant] and it has, from the Tribunal’s observations, a photograph on it clearly being the applicant. The other documents are as stated from mainland China. The identify card has a photograph on it that does not resemble the applicant. The other document the Notarial certificate was issued on a date after the applicant arrived in Australia – it could not have been issued to her, and from what she said at the hearing of its origins it is clearly a forged document.” (CB p.85)
The Tribunal then went on to consider a number of the applicant’s other claims including the reasons she did not pursue any pro-democracy activities on her arrival in Australia, the formation of the CAD organisation, the unusual claim that she did not understand what CAD stood for, the unusual claims in respect of the operation of overseas organisations and her involvement with them and a number of the implausible claims made in respect of her arrest and charges and her involvement with anti-government activities. The Tribunal considered that many of these claims were in fact manufactured in an effort to build support for her visa application. The Tribunal concluded that the applicant was not a credible witness and I accepted the respondent’s submissions in respect of this finding and I believed it was consistent with the authority quoted by the respondent. I also accepted the respondent’s submissions in respect of natural justice being accorded in that all of the issues were put to the applicant during the hearing. There was nothing raised by the applicant in either her initial or amended application for review or in her oral submissions that challenged this view. A transcript of the Tribunal’s hearing was not filed by the applicant nor was it raised as an issue in the applicant’s limited submissions that the content of the Tribunal’s written decision was in any way contrary to what occurred during the Tribunal hearing.
On the face of the Tribunal’s decision, there was nothing to suggest that the applicant was not given the opportunity to respond to any of the issues raised in respect to the conclusion that she lacked credibility due to falsification of documentation and the inconsistency and implausibility of a number of her claims. I accepted the respondent’s submissions that there was no reviewable error on a fair reading of the Tribunal’s decision and that it was a decision open to the Tribunal on the evidence before it.
In respect of the Notice of Objection to Competency, the Tribunal’s decision was published on 20 January 2000. On that date the Tribunal forwarded a letter to the applicant advising her that the Tribunal had made its decision and of the steps that had to be taken by her if she wished to lodge an appeal with the Federal Court to seek a review of the Tribunal’s decision if she sought to do so. Copies of the Tribunal’s letter were set out in the Court Book at pages 75 and 76 and attached to the affidavit of Ms Alex filed with the Court on 2 March 2005. From the information supplied there was no indication that this correspondence was returned to the Tribunal or the Department. The address also accorded with the details contained in the Notification of Change of Address which was provided by the applicant to the Tribunal (CB p.68). There was an unexplained delay of approximately five years in the applicant’s filing of an application for judicial review. As the applicant had recently been detained by Immigration officials, the re-agitation of this matter may be directly related to the issue of detention. I accepted the respondent’s submissions in respect of the Notice of Objection to Competency and the authority quoted in support of the contention.
Conclusion
For the reasons stated above, I have not been able to identify any ground that the Tribunal has committed a jurisdictional error. The applicant’s application filed on 7 February 2005 should be dismissed. The respondent’s Notice of Objection to Competency filed on 2 March 2005 should be upheld.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 29 April 2005
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