SZGFH v Minister for Immigration
[2007] FMCA 873
•16 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGFH v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 873 |
| 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 People's Republic of China – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 425 |
| Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425 Minister for Immigration & Multicultural Affairs v SZGMF [2006] FCAFC 138 SZHXW v Minister of Immigration & Citizenship [2007] FCA 368 |
| Applicant: | SZGFH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 560 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 16 May 2007 |
| Date of last submission: | 16 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 16 May 2007 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms McWilliam |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $4,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 560 of 2007
| SZGFH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal handed down its decision on 11th January 2007. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa. The Applicant seeks judicial review of that decision. He filed an application and an affidavit on 19th February 2007. In that application he seeks the following:
i)A declaration that the decision was invalid and contrary to law.
ii)An order that the decisions and each of them referred to above be quashed or set aside.
iii)An order that the matter be remitted to a differently constituted Refugee Review Tribunal to be determined in accordance with law.
It is unclear why the Applicant refers to more than one decision as there is only one decision of the Refugee Review Tribunal that is under review.
Background
The background to this matter is that the Applicant is a citizen of the People's Republic of China. He arrived in Australia on 6th July 2004. It appears that the passport which he used was in the name of another person. He applied for a Protection (Class XA) visa on 19th August 2004 stating another name. His application for a visa was refused on 6th January 2005. The Applicant sought a review of that decision from the Refugee Review Tribunal.
The Tribunal affirmed the delegate's decision on 22nd March 2005. The Applicant then sought judicial review of that decision from the Federal Magistrates Court. On 19th September 2006 the Federal Magistrates Court made orders by consent setting aside the decision and remitting the application to the Tribunal.
The Tribunal wrote to the Applicant care of his migration adviser on 24th October 2006. That letter acknowledged that the Court had remitted his case to the Tribunal for re-consideration. The letter informed the Applicant that his case would be allocated to a Member of the Tribunal who had not previously made a decision in relation to his case. The letter went onto set out to the Applicant what procedures the member may follow.
The Tribunal wrote to the Applicant on 7th November 2006. A copy of that letter appears at pages 145-148 of the Court Book. The letter was headed "Invitation to Comment on Information" and was clearly intended to comply with the requirements of s.424A of the Migration Act. The letter informed the Applicant that the Tribunal had information that would subject to any comments that he made by the reason or part of the reason for deciding that he was not entitled to a protection visa.
The information appeared under two headings. The first heading was: “Documents on DIMA file” and referred to the passport provided by the Applicant and the certificate of identity which the Applicant provided. The second heading was “Interview with DIMIA delegate, January 2005”. That information related to statements made by the Applicant to the delegate of the Minister. The letter went onto advise the Applicant:
This information is relevant because:
· it could lead the Tribunal to conclude that you have not been truthful in your dealings with the DIMA and the Tribunal in relation to your identity;
· It could lead the Tribunal to conclude that you have submitted fraudulent documents to DIMA and to the Tribunal;
· It could leave the Tribunal unable to be satisfied as to your identity;
· and therefore, it could lead the Tribunal to conclude that because you have not told the truth about a fundamental matter, that is your identity. You have not told the truth about the reasons for which you left the PRC and specifically your claim to have a well founded fear of persecution in the PRC because of your involvement in protests.[1]
[1] See Court Book at page.146.
The letter invited the Applicant to comment on that information by 21st November 2006. The letter went on to set out additional matters which the Tribunal may take into consideration when it considered his application. Those additional matters related to evidence given at the first Tribunal hearing on 14th March 2005. The letter then invited the Applicant to provide comments by 21st November and warned him that the Tribunal subject to those comments might make the same findings as the previous Tribunal had done.
The letter went onto advise the Applicant:
Please note that as you have previously attended a hearing before the Tribunal to give evidence and present arguments. At this stage the Tribunal does not propose to hold another hearing.
The Applicant's migration agent replied to that letter on 21st November 2006. She forwarded to the Tribunal a two page statutory declaration by the Applicant. In that statutory declaration the Applicant said that he strongly believed that it must apparently be unfair if he had been denied to have a chance at a hearing before the presently constituted Tribunal. He referred to the evidence about the passport that he had used to enter Australia as well two Chinese ID cards. He went onto say:
Frankly speaking, I think that the decision made by the previously constituted Tribunal has included a reasonable apprehension of bias. At least, the previously constituted Tribunal should look at my claims as a whole instead of only paying its attention to the passport or ID card, even though it may be one of important issues.[2]
[2] See Court Book at pages 150-151
The Tribunal wrote to the Applicant on 22nd November 2006. This letter invited the Applicant to attend a hearing on 14th December 2006. The Applicant attended and gave evidence with the assistance of an interpreter in the Mandarin language. The Applicant produced a passport to the Tribunal and a photocopy of that appears in the Court Book. A copy of the Tribunal decision record can be found at pages 167-182 of the Court Book. In that decision the Tribunal considers in some detail the Applicant's claims and evidence and sets that information out at pages 170-179.
The Tribunal refers to the Applicant's application for a protection visa in August 2004, his identity documents, the interview with the delegate of the Minister in January 2005, the delegate's decision, the application for review in January 2005 and the hearing before the first Tribunal on 14th March 2005. The Tribunal referred also in some detail to the s.424A letter sent to the Applicant on 7th November 2006 and the Applicant's response to that letter by statutory declaration on 21st November 2006.
The Tribunal also set out a summary of the Applicant's oral evidence of the hearing on 14th December 2006. That summary included descriptions of the Tribunal's questions of the Applicant about his passport and his ID card. The Tribunal notes that the Tribunal Member told the Applicant that she has significant difficulty accepting that what the Applicant told her was the truth and that she was left with the same doubts as the delegate and the first Tribunal as to the Applicant's overall credibility and therefore the credibility of his claims to be a refugee.
The Tribunal’s findings and reasons
The Tribunal's findings and reasons are set out on pages 179-181 of the Court Book. The Tribunal began by saying that there were significant credibility problems in relation primarily to the Applicant's identity. The Tribunal referred to the Applicant's use of a passport in another person's name and the concern about the fact that that particular passport appeared to have departed Australia on 13th July 2002 at a time when the Applicant claimed that he had it in his possession until October 2002.
The Tribunal had difficulty accepting that evidence, especially in relation to the Departmental movement records. The Tribunal said:
I am unable to reconcile the apparent discrepancy between the movements records and the applicant's statement on any other basis than to conclude that the applicant is not telling the truth. I consider that the applicant's untruthfulness on this issue is highly damaging to his overall credibility.[3]
[3] See Court Book at page 179
The Tribunal also described how the Applicant had provided ‘differing and shifting explanations’ to the delegate to the first Tribunal and to the present Tribunal about the origins of his identity cards and how they were obtained. The Tribunal went onto comment at page 180:
At the hearing before me the applicant provided yet another explanation, which itself contained internal contradictions and inconsistencies which the applicant was unable to explain to my satisfaction.
The Tribunal did not accept the Applicant's claims about his identity cards and in particular did not accept that the Applicant could not have been aware of the whereabouts of his ID card for two years, or that he would not have realised that the ID card had been retained by the PSB. The Tribunal went onto find that the Tribunal was not satisfied about the Applicant's credibility in this regard. The Tribunal said:
I am satisfied that the applicant has knowingly submitted at least one counterfeit document, the first identity card, to the Department in support of his protection visa application. I am satisfied that he has not been truthful in his subsequent explanations as to why he did so or, how this card was obtained.
The Tribunal went onto find that because the Tribunal was confident that the Applicant was not telling the truth about the identity cards:
I am unable to be satisfied that the applicant is the person identified on either of the ID cards, who he claims to be.
The Tribunal went onto find that along with the issue of the ID cards the Applicant's account of having been detained in November 2002 and released shortly thereafter and having been involved in protest activity between 2002 and 2004 were all central to the Applicant's claims to be a refugee. The Tribunal went onto find:
As I am unable to accept that the applicant is who he claims to be as I am satisfied that he has not told the truth about issues central to his refugee claims, and because his various accounts of the events of 2002 and 2004; in relation to the seizure of his identity documents are inconsistent and implausible, I am unable to be satisfied that the applicant has a well founded fear of persecution in the PRC for the reasons he claims.
The Tribunal concluded that the Applicant had not been truthful in his dealings with the Department and the Tribunal in relation to his identity and had submitted at least one fraudulent document to the Department and to the Tribunal. The Tribunal was unable to be satisfied as to the Applicant's identity and was satisfied that he had not told the truth about a fundamental matter, namely that identity.
The Tribunal was also satisfied that the Applicant had provided untruthful explanations to account for the fact that he had provided a counterfeit document to the Department. The Tribunal found that those explanations involved inconsistent and contradictory information about the events which the Applicant claims led to his departure from the PRC and which the Tribunal was also satisfied were untruthful.
The Tribunal was satisfied that the Applicant had not told the truth about the reasons for which he left the PRC and his claim to have a well founded fear of persecution there. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
The application for judicial review
The Applicant seeks judicial review of that decision claiming:
i)That 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 Applicant claims that the Tribunal failed to comply with its obligations under s.424A(1) of the Migration Act by regarding the Department's movement records as the reason or part of the reason for making its decision but not having shown those movement records to the Applicant. The Applicant also claims a breach of s.424A(1) in that the Tribunal had considered the information that ‘his evidence at the interview with the Department and the first or the second Tribunal's hearings were inconsistent,’ and failed to provide him with that information in accordance with the provisions of s.424A(1).
The second ground alleges that the Tribunal made a finding of bias. The particulars are:
a) It is apparent that there is definitely a mistake in the movement's records of the Department.
b) Logically speaking, if someone used the passport which I had used to enter Australia, to depart the country in July 2003. How could I submit the passport to the Department in October 2003?
c) The finding of the Tribunal has, obviously, implied that the Department will never make any mistakes. If it were the case, then I have to question actual function of the Tribunal.
d) It is definitely unfair that the Tribunal stands at the same side of the Department but not in the middle.
Those were the grounds upon which the Applicant relies in his application. He told the Court at the hearing that he did not wish to add to what was in his material although when he was given the opportunity to reply to an oral submission by Ms McWilliam of counsel for the Respondent, then read from a prepared statement in which he alleged not only a breach of s.424A(1) of the Migration Act but also a breach of s.425. He claimed that the Tribunal at the hearing did not give him a chance to give oral evidence in support of his claim and to reply to the matters raised by the Tribunal.
Turning first of all to the Applicant's claim of a breach of s.424A of the Migration Act. The Tribunal prior to the hearing on 14th December sent the Applicant a letter dated 7th November 2006 referring to the issues of the passport used by the Applicant, the Department's movements records and the Applicant's inconsistent explanations. That letter did make it clear to the Applicant that that information subject to his comments could be the reason or part of the reason for affirming the Tribunal's decision. The letter gave the Applicant the opportunity to comment on that material. An opportunity which the Applicant took. The letter drew the Applicant's attention to other material as I previously mentioned relating to evidence before the first Tribunal.
The Applicant's claims seem to be that the Tribunal should have provided the actual copies of the movement records to the Applicant. I am not satisfied that that is the case. The letter dated 7th November 2006 from the Tribunal made quite clear what the information was and I see nothing in s.424A(1) that indicates that copies of source documents must be provided to an applicant.
The other part of the Applicant's ground relating to a breach of s.424A(1) relates to inconsistency between his interview with the delegate and evidence to the first or second Tribunal hearing. It is clear that the relevant information given to the delegate and given at the first hearing were clearly set out in the Tribunal's letter of 7th November 2006. The fact that there were inconsistencies between that evidence and the evidence given by the applicant at the Tribunal hearing under review does not constitute in the formation that comes within the ambit of s.424A(1). Inconsistencies between items of information do not of themselves constitute information. A finding that there are inconsistencies between pieces of information is a conclusion drawn from that information by the Tribunal. The Tribunal has no obligation to put that conclusion to the applicant in writing for comment under the provisions of s.424A of the Act. There is no breach of s.424A of the Migration Act. That ground fails.
The Applicant also claims bias on the part of the Tribunal. I am not satisfied that there is any evidence of bias. The claim that there is a mistake in the Departmental movement records does not of itself show bias on the part of the Tribunal. The Applicant's claim that the Tribunal finding implied that the Department never makes any mistakes is an assertion going to a factual finding about Departmental movement records but does not establish that the Tribunal accepts anything from the Department without question and does not establish that the Tribunal is not independent of the Department.
It has been put to me by counsel for the Minister and I believe correctly that for a complaint of apprehended bias to be made out it must be firmly established that a fair minded lay observer might reasonably apprehend that the decision maker might not bring an impartial and unprejudiced mind to the resolution of the question that the Tribunal is required to decide. I am referred to a number of cases including Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425 at 434,.[27]. Counsel for the Minister has drawn the Court's attention to the decision of the Full Court of the Federal Court in Minister for Immigration & Multicultural Affairs v SZGMF [2006] FCAFC 138. At [21] Branson, Finn and Bennett JJ said:
Further, there is no obligation on a Tribunal member to maintain a neutral state of mind during the entire course of a review of a delegate’s decision. What is critical is that the member not close his or her mind against any additional material that might possibly prove probative.
In the case before me it is clear from the Tribunal's letter of 7th November 2006 that the Tribunal originally planned not to hold a further hearing. However, after the receipt of the Applicant's statutory declaration in reply to the letter of 7th November 2006 the Tribunal clearly changed its mind, scheduled a hearing and invited the Applicant to attend a hearing to give evidence and present arguments. This is hardly the action of a person with a closed mind and a person unable to accept that there may be probative evidence in support of the Applicant's claim.
I am satisfied that the Tribunal in changing its mind and scheduling a hearing indicated a willingness to consider further material from the Applicant and I am not satisfied that there is any evidence of bias. I note that in the Applicant's statutory declaration of 21st November 2006 the Applicant accused the first Tribunal of bias also.
I refer to the decision of SZHXW v Minister of Immigration & Citizenship [2007] FCA 368 where Jessup J said at [8]:
I have seen this allegation of bias in a number of Notices of Appeal in proceedings arising under the Act recently, and I regret to say that one gets the impression that allegations of this kind are resorted to much more liberally than the circumstances ever seem to justify and without an apparent consciousness of the seriousness of the accusation involved in them.
In my view, with respect, this is just such a case as Jessup J referred to.
The third ground raised by the Applicant in an oral submission today is that of a breach of s.425 of the Migration Act. I did comment to the Applicant during the hearing that his understanding of the effect of s.425 was misconceived but I also indicated that I would consider this claim notwithstanding the fact that it was a ground that had not been raised until the applicant made his submission in reply.
The Applicant was invited to attend a hearing and give evidence. He gave evidence. He had the assistance of an interpreter. He had been made aware of the Tribunal's concerns about his credibility in relation to his passport and his identity cards by means of the Tribunal's letter of 7th November 2006. The Tribunal Member asked him at the hearing about those issues. The Applicant can hardly have been surprised that those matters should have been raised with him by the Tribunal at the hearing when they had been set out in some detail in the Tribunal's letter to him in November. The Applicant answered the Tribunal's questions but the Tribunal did not accept his explanations at the hearing. I see no breach of s.425 of the Migration Act.
The fact is that the Tribunal did not accept the credibility of the Applicant's claim. The Tribunal took into account the fact that the Applicant had freely admitted that he used another person's passport to enter Australia because he was wanted by the police in China and acknowledged that a person applying for refugee status may in certain circumstances take such a step. The Tribunal said at page 179 of the Court Book:
This claim is, on its face, plausible, and I accept that a person would not be precluded from being recognised as a refugee simply because they had used a fraudulent document for the purpose of travel, or in relation to some aspect of their application.
In this case, however, the Tribunal had concerns about the movements of the passport arising from the Department's computerised movements records and the Applicant's unsatisfactory explanations of them.
This is a case where credibility was the fundamental issue. Credibility is a factual matter and provided there is evidence upon which a Tribunal can be satisfied in making a credibility finding then a Court conducting judicial review has no place to interfere. In this case I am satisfied that there was ample evidence arising from the passport, the identity cards and the Applicant's explanations to justify the Tribunal in making its serious adverse findings as to the Applicant's credibility.
The Applicant has not shown any jurisdictional error on the part of the Tribunal. The Applicant is not legally represented in these proceedings. I have examined the Tribunal decision and the other documents in the Court Book independently of both the Applicant's application and the Respondent's submissions and I am unable to discern any arguable case for jurisdictional error whether raised by the Applicant or not. There is no jurisdictional error. The Tribunal decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. Consequently, under sub-s.474(1) it is final and conclusive and not subject to orders in the nature of certiorari or mandamus or declaration as the Applicant seeks. The application will be dismissed.
There is an application for costs on behalf of the First Respondent Minister. The Applicant has been wholly unsuccessful in his claim. There is no reason why the Minister who is the successful party should not be entitled to a costs order. The amount sought is $4,800.00 inclusive of counsel's fees which is within the range envisaged by the Court Rules. I propose to make the costs order that is sought.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 6 June 2007
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