SZGBT v Minister for Immigration - [2006] FMCA 1464

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGBT v MINISTER FOR IMMIGRATION

[2006] FMCA 1464

MIGRATION – Review of RRT decision − where Tribunal found applicant not to be credible − where applicant claimed he was not sent tape of Tribunal hearing − whether breach of procedural fairness − whether case law relied on by the Tribunal in making its decision is “information” under s.424A Migration Act 1958 − whether reasoning process of the Tribunal constitutes “information” for the purposes of s.424A.

Migration Act 1958, ss.422B, 423, 424, 424A

Minister for Immigration v Lay Lat [2006] FCAFC 61

Applicant:

SZGBT

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

File Number:

SYG917 of 2005

Judgment of:

Raphael FM

Hearing date:

28 September 2006

Date of Last Submission:

28 September 2006

Delivered at:

Sydney

Delivered on:

28 September 2006

REPRESENTATION

Applicant in Person

Counsel for the Respondent:

Mr A. McInerney

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG917 of 2005

SZGBT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of the People’s Republic of China. He arrived in Australia travelling on a Republic of China passport in June 2004. On 2 August 2004 he applied for a protection (class XA) visa. He was assisted in his application by a migration agent.

The application was refused by way of a letter addressed to the applicant and his agent on 12 August 2004 [CB34-35].

On 1 September the applicant signed an application for review by the Refugee Review Tribunal which was received by the Tribunal on

14 September. The applicant again named his migration adviser as a person authorised to act for him in connection with the application.
Together with the application was a statutory declaration dated

12 September. The Tribunal held a hearing into the applicant’s claims on 6 December 2004. Following the hearing, the Tribunal sent the applicant a letter, found at [CB54] – [55], dated 7 December 2004.

The letter raised a number of matters of concern to the Tribunal, which might have been the reason, or part of the reason, for confirming the decision under review. On 30 December 2004 the agent forwarded to the Tribunal a letter from the applicant in response to the s.424A Migration Act 1958 (the “Act”) letter, which contained a number of representations that had been made in the earlier statutory declaration. The letter from the applicant also asked the Tribunal to provide him with a copy of the tapes of the Tribunal hearing. On 23 March 2005 the Tribunal handed down its decision to affirm the decision not to grant a protection visa.
The applicant gave the Tribunal a lengthy history of the persecution he alleged he had suffered in China from about January 2002 when he became a labourer constructing a tunnel located near to his home town. There were problems with payment for the work which the applicant and his colleagues undertook, and the applicant claimed to have taken part in a protest which saw him arrested and eventually made to go back to work on an agreement by which in return for official forgiveness he was to work for nothing.
The statement given to the Tribunal by the applicant and set out in detail by the Tribunal between [CB68] and [CB73] is replete with internal inconsistencies and inconsistencies with the written documentation provided by the applicant. It was as a result of these inconsistencies that the Tribunal took the step of sending the applicant the s.424A letter to which I have previously referred. It has not been suggested to me by the applicant that there were any findings by the Tribunal that were not in regard to matters that the Tribunal had raised in the s.424A letter. In other words, it has not been suggested that the s.424A letter did not cover all the matters of concern which became the reasons or part of the reasons for the Tribunal’s decision.
The Tribunal utilised the inconsistencies to come to the view expressed at [CB 78]:
“I accept that the applicant is a citizen of the People’s Republic of China. However, having regard to the obvious problems of his evidence, I do not accept that the applicant is telling the truth about the events that led up to his departure from China. I do not accept, in particular, that he was involved in protests in relation to the non-payment of wages or ‘labor fees’. I do not accept he was arrested on Army Day, 1 August 2003, nor that he was detained for a month, nor that he was released on bail and required to appear again in court in October 2003 on charges related to organising an anti-government protest or riot on army day. I likewise do not accept that the applicant was forced to continue working on the construction project without any payment until he supposedly managed to escape in December 2003. I do not accept that the applicant has a well-founded fear that he will be persecuted as a person who organised anti-government activities and has strong political opinions against the government. I do not accept the applicant has such opinions nor do I accept that he ever organised any anti-government protests. I do not accept that there is a real chance that the applicant will be involved in any form of anti-government protests if he returns to China now or in the reasonably foreseeable future. I do not accept that he has a well‑founded fear of being persecuted for reasons of his real or imputed political opinion.”
On 14 April 2005 an application was made to this court. The applicant then appeared before a registrar and signed consent orders which required him to file an amended application. The applicant was also offered the services of a lawyer to assist him. The applicant had given an address for service and in evidence before me confirmed that he had been living at this address at the time he lodged the original application, and when he lodged the amended application on 24 June 2005. He told me that he had not received the green book.

He suggested that he might have telephoned the solicitors for the respondent informing them that he had not received the green book, but was told that it had been dispatched. He appears to have allowed the situation to continue from some time in the winter of 2005 until today, about 15 months later. I am not satisfied that the applicant did not receive the green book.
In any event, on 24 June 2005 an amended application was filed. It is in English, and provides grounds for saying that the Tribunal fell into jurisdictional error in the way in which it came to its decision. When I showed the document to the applicant, he was unable to identify it, although he did identify his own signature. He said he had some assistance in the filing of the document.
The particulars of the alleged jurisdictional error indicate that the applicant submits that he was not provided with procedural fairness because he was not sent a copy of the tape of the Tribunal interview before he responded to the Tribunal’s s.424A letter, but the fact is that he only made the request for the tape in his letter of response.

The Tribunal deals with this matter at [CB 75]:
“He said he could not remember what he had said at the hearing, and that he did not have a copy of the hearing tape. However, once again, the applicant is advised by a registered migration agent who would be aware that he could have obtained a copy of the tape at any time after the hearing and certainly in ample time to allow him to refresh his memory if he wished to do so before responding to the Tribunal’s section 424A letter dated 7 December 2004.”
The difficulty which the applicant faces in alleging a breach of the requirement to provide him with procedural fairness in regard to this aspect of the matter is that s.422B, which was in force at the time the decision was made requires that the provisions in relation to procedural fairness found in ss.423, 424, and 424A and the balance of Division 4 are to be taken as an exhaustive statement of the requirements of the natural justice hearing rule in relation to these matters. That there is no further scope for the imposition of wider rules was made clear by the full bench of the Federal Court in Minister for Immigration v Lay Lat [2006] FCFCA 61 at [60]-[70].
In any event it would have been open for the applicant through his agent to do at least two other things. Firstly, he could have written to the Tribunal and asked for further time after he received the tape to respond to the s.424A letter, or he could have written his response on the basis of what he believed he had said, rather than what the Tribunal indicated that he had said, but he did neither.
The second matter raised in the particulars is an alleged failure by the Tribunal to comply with s.424A of the Act by not giving the applicant a number of cases that it is, presumably, suggested the Tribunal relied upon. These cases are found in the statements of law which the Tribunal has used in coming to its decision, but to my mind, cases do not constitute “information” for the purposes of s.424A, which is really aimed at evidence that might be used to contradict statements of an applicant. The cases are indicative only of the thinking processes utilised by the Tribunal in coming to its decision.
In the third matter raised by the applicant in his amended application, he states:
“It is apparently that there are based on its decision significant misunderstandings between the Tribunal and me in relation to the evidences specified in my statement signed on 30 December 2004, which was after the hearing. If it is the case I believe that the Tribunal, according to section 424A or section 425 of the Act should give to me, in the way that the Tribunal considers appropriate, particulars of any information in relation to my statement of 30 December 2004 that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review.” [sic]
If the Tribunal was required to enter into correspondence with every applicant upon the receipt of an applicant’s response to a s.424A letter, these cases would never be brought to an end. That cannot be the intention of the Act. The purpose of s.424A is to give an applicant the opportunity to make comment on matters that might be going to the Tribunal’s decision. A close look at the way in which the Tribunal has utilised the response to the s.424A letter at [CB78] indicates no more than the Tribunal’s reasoning processes:
“I consider it clear that the claim that he was on bail and that he went into hiding in October 2003 is inconsistent with the claim set out in the statutory declaration accompanying his original application that he was forced to continue working on the construction project until he supposedly escaped in December 2003. In his letter signed on 30 December 2004 the applicant attempted to reconcile both accounts, stating that after he had been released on bail he had been sent back to work on the construction project. However it is impossible to reconcile this with his evidence at the hearing that he was required to appear at a date in October in relation to charges relating to anti-government protest but that he did not go and instead went into hiding in October 2003.”
In my view, this reasoning process does not constitute “information” that might require a further s.424A letter.
Before me today the applicant said nothing which in any way advanced his case over and above what appears in the amended application that I have discussed. I am satisfied that for the reasons given no jurisdictional error occurred in the way in which the Tribunal came to its decision in this matter. I dismiss the application. I order that the applicant pay the respondent’s costs, which I assess in the sum of $4,500.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate:

Date: