SZGNH v Minister for Immigration

[2006] FMCA 1186

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGNH v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1186

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China arising out of his employment – adverse credibility finding by RRT – no reviewable error found – application dismissed.

Migration Act 1958, s.424A

Minister for Immigration v Jia (2001) 205 CLR 507
Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407
Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425
Sarbit Singh v Minister for Immigration [1996] FCA 902
VFAB v Minister for Immigration (2003) 77 ALD 23

Applicant: SZGNH

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1534 of 2005

Judgment of: Driver FM

Hearing date: 15 August 2006

Delivered at: Sydney

Delivered on: 15 August 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms Z McDonald
Phillips Fox

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1534 of 2005

SZGNH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”).  The decision was handed down on 19 May 2005.  The RRT affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.  The background facts relating to the applicant's arrival in Australia, his protection visa claims and the RRT’s decision on them are summarised in written submissions prepared on behalf of the Minister.  I adopt as background, for the purposes of this judgment, paragraphs 2 to 9 of the Minister's submissions:

   The applicant is a male citizen of China born on 16 May 1950[1].  He arrived in Australia on 15 August 2004, as a seaman[2], and applied for a protection (class XA) visa on 4 January 2005[3].  His claims were set out in a statement accompanying the application[4].  The application was refused on 17 January 2005[5].

   [1] court book, page 12

   [2] court book, page 14

   [3] court book, pages 1-33

   [4] court book, page 26

   [5] court book, pages 36-45

   The applicant applied to the RRT for review of the original decision on 1 February 2005[6].  The applicant gave oral evidence before the RRT on 24 March 2005.  The RRT handed down its decision on 19 May 2005.

   [6] court book, pages 46-49

   The applicant's claims

   The applicant claimed that he worked for Qing Dao Carpet Factory and was persecuted by the Director for criticising him about his negligence of human rights and his inhuman behaviours to workers. He further claimed he was persecuted by the same Director when he worked at Qing Dao Hardware Company for exposing that the Director “had corruption with the government's assets”.

   He further claimed that when working as a seaman, the shipping company violated the regulations of international maritime affairs. He organised a few seamen and planned to prepare some documents to ITF inspectors to complain about this. He claimed there was information around the ship that he would be killed and it would be covered as a suicide, otherwise he would be put in jail on return to China.

   The decision of the RRT

   The basis of the RRT's decision was an adverse credibility finding as a result of the applicant's unreliable and unconvincing evidence. The RRT found the applicant's evidence to be inconsistent and he failed to substantiate vital aspects of his recent experiences.

   In relation to the applicant's claims about criticising the Director of the Qing Dao Factory, the RRT noted that the applicant did not claim and there was no evidence that these difficulties were for reason of his religion or religious beliefs[7].

   [7] the applicant had included some references to Jesus in his protection visa claims

   a)The RRT found that there was no evidence that he suffered serious harm in the workplace for any Convention reason. At the conclusion of inquiries he was cleared of any wrongdoing and reinstated.

   The RRT found the applicant's claims that he was taken away from questioning and held for three days, after exposing that the leader of the Hardware company 'had corruption with government assets' were implausible as his evidence was inconsistent.

   a)At the hearing, he first said his captors were from the Qing Dao Anti Embezzlement Bureau, and later said he believed they were from the Public Prosecutors Office.

   b)The RRT also noted that whilst living in Beijing the applicant returned to see his family in Qing Dao quite frequently and without incident. This was despite his claims to the RRT that he still feared action from the Public Prosecutor's Bureau there.

   The RRT found the applicant's claims relating to his mistreatment from the captain on board the vessel Changsha to be implausible as he had not made any formal approach to the ITF representative in Sydney.

   a)The RRT found that it would be reasonable to expect that if threats were made against his life that he would have reported the matter to the police at the first opportunity and indeed while the vessel was still in Australian waters.

   b)It further found that it was implausible that if the captain had threatened to have him killed, he would have released him from the cell after two days to do the cooking on board.

2. The applicant relies upon an amended application filed on 20 September 2005.  In that application the applicant takes issue with factual findings made by the RRT and asserts that the decision was based on assumptions.  The amended application also asserts bias. 

3. Plainly, the applicant failed before the RRT because he was, in critical respects, not believed.  While the applicant disputes both the facts found by the RRT and the RRT’s reasoning process, there was material before it on which the adverse credibility findings could be made.  I agree with and adopt for the purposes of this judgment paragraphs 14 and 15 of the Minister's written submissions:

   It is evident from the Claims and Evidence section of the RRT's decision[8] that the RRT took extensive evidence from the applicant. The applicant, throughout the course of his evidence, was asked to explain in detail his claims, as well as events leading up to, and after, his arrival in Australia.  

   As a result of the information put forward by the applicant at the RRT hearing, it found the applicant's evidence in relation to his claims to be confused and internally inconsistent. His failure to substantiate vital aspects of his claims led the RRT to conclude that the applicant fabricated his claims so as to enhance his claims to refugee status. 

   a)The respondent submits that this adverse credibility finding was reasonably open on the evidence before the RRT due to the inconsistencies in the applicant's oral evidence. Adverse credibility findings are properly the function of the decision-maker and generally not susceptible to judicial review by the Court, see McHugh J in Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407.

   [8] court book, pages 63-69

4. I also reject the allegation of bias and adopt paragraph 17 of the Minister's written submissions:

   Where there is an allegation that the matter has been predetermined, a transcript of the proceedings is important to determine the statements that were made by the RRT, the nature of the exchanges between the RRT and the applicant and the context in which statements were made, see Sarbit Singh v Minister for Immigration [1996] FCA 902 at [6-7], as discussed by Kenny J in VFAB v Minister for Immigration (2003) 77 ALD 23 at [22].

   a)As the applicant has not put forward any evidence in the form of a transcript to contradict the RRT's account of the hearing, the respondent submits that on the face of the RRT decision, this ground must fail.

   b)There is nothing on the face of the decision to indicate that the RRT had a mind not "open to persuasion" or "incapable of alteration", see Minister for Immigration v Jia (2001) 205 CLR 507 at 531-2, or that would cause a "fair minded lay observer [to] reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided", see Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425.

5. The amended application also asserts a failure to consider independent information.  The Minister's submissions deal with that assertion as a failure to consider independent country information.  Having heard the applicant's oral submissions I formed the view that he meant something else.  I have formed the view that what concerned the applicant was an asserted failure by the RRT to consider information available to the applicant which he regarded as independent.  This is reinforced by the documents attached to the amended application.  The applicant submitted that these bore directly upon his protection visa claims and should be considered.  I sought to explore with the applicant whether those documents were documents before the RRT when it made its decision.  Ms McDonald, who appeared for the Minister, told me that she had inspected her client's file and did see several documents in the Chinese language which were not reproduced in the court book.  On page 62 of the court book, which I received as evidence, the presiding member refers to four documents produced by the applicant at the hearing conducted by the RRT.  Two of those were evidently untranslated Chinese documents.  Despite several attempts from me, I was not able to get from the applicant a clear statement of whether and if so when he provided the documents annexed to his judicial review application to the RRT.  As best as I could determine from his answers he never has provided those documents to the RRT, at least in English language form.  The applicant appeared mistakenly to believe that the proceeding in this Court was in some way an extension of the proceeding before the RRT and that the documents could be considered by me as bearing upon his protection visa claims.  I also note that several of the documents bear an interpretation stamp with the date 20 September 2005.  That is the same date as the amended application was filed in this Court.  I find on the balance of probabilities that the documents in the English language attached to the amended application were not provided to the RRT.  They could not therefore be taken into account by the RRT. 

6. On page 68 of the court book, at about point 6, there is a reference to discussion at the RRT hearing about false labour agreements signed in China.  The presiding member records that she invited the applicant to get the documents translated.  There is nothing to indicate whether he did.  I note, however, that the presiding member waited from 24 March 2005, when the hearing took place, until 27 April 2005 when she signed her decision.  She waited again until 29 May 2005 before handing down her decision.  I infer that a possible reason for that delay was that the presiding member was waiting to see if any further documents were produced by the applicant.

7. There is no evidence that any further documents were given to the RRT between the date of the hearing and the date the decision was handed down.  I do not rule out the possibility that the RRT had before it some untranslated documents in Chinese that, if translated, might have had some bearing upon the outcome.  However, there is no obligation on a tribunal to consider untranslated documents.  Review applicants are instructed in the review application to provide English translations of documents in other languages (see court book, page 48).  I find that the assertion that the RRT overlooked relevant material in coming to its decision is not substantiated. 

8. In his oral submissions the applicant also referred to an asserted breach of s.424A of the Migration Act 1958 (Cth). That was not advanced as a ground of review in the amended application but, as the applicant is self-represented, I considered it.

9. The presiding member refers to information derived from the applicant's protection visa application in the second paragraph of her decision (court book, page 71).  However, the relevant claims which are rejected as implausible in that paragraph were claims made by the applicant at the hearing conducted by the RRT (see court book, pages 64 and 65).  Those claims were information provided by the applicant to the RRT for the purposes of the review.  The applicant's protection visa claims simply provided the starting point from which the applicant was questioned at the RRT hearing.  The information in the protection visa application was not information used by the RRT as a reason, or part of the reason, for affirming the delegate's decision. 

10. I find that the decision of the RRT is free from jurisdictional error.  It is therefore a privative clause decision and the application must be dismissed.  I will so order. 

11. The application having been dismissed, costs should follow the event.  The Minister seeks an order for costs fixed in the sum of $3,300.  The applicant indicated an intention to appeal and was concerned that he should not have to pay costs pending the outcome of any appeal.  He is entitled to appeal against the costs order as well as against the order dismissing his application.  I accept the Minister's estimate of party party costs. 

12. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $3,300.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  22 August 2006