SZGNN v Minister for Immigration - [2005] FMCA 1273

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGNN v MINISTER FOR IMMIGRATION

[2005] FMCA 1273

MIGRATION – Visa – protection (class XA) visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of China – claim of a well-founded fear of persecution because of political activity in China.

PRACTICE & PROCEDURE – Notice of objection to competency – privative clause decision – where application filed more than 28 days after the applicant was notified of the decision – where RRT decision was made on 23 February 1999 but application not filed until 15 June 2005 – application filed after applicant taken into immigration detention.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth), ss.474, 477

Ngu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 21
Re Minister for Immigration & Multicultural Affairs ex parte Durairajasingham [2000] HCA 1; 168 ALR 407

Applicant:

SZGNN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 1550 of 2005

Judgment of:

Scarlett FM

Hearing date:

4 August 2005

Date of Last Submission:

4 August 2005

Delivered at:

Sydney

Delivered on:

18 August 2005

REPRESENTATION

The Applicant:

In person

Solicitors for the Respondent:

Ms Alex
Phillips Fox

ORDERS

The application is dismissed.
That the application is not competent, having been filed more than

28 days after the date of notification of the decision.
That the Applicant is to pay the Respondent’s costs of this application fixed in the sum of $3,400.00 and I allow four (4) months to pay

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1550 of 2005

SZGNN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of a decision of the Refugee Review Tribunal made on 23^rd February 1999. The applicant says in his amended application that he was notified of the decision the same day. After he was taken into immigration detention at Villawood he requested a further copy of the reasons for decision. The Refugee Review Tribunal faxed a copy of that decision to him on

10^th June 2005. The Tribunal decision affirmed the decision by a delegate of the respondent Minister not to grant the applicant a protection visa.
The applicant attended a hearing of the Refugee Review Tribunal on

9^th February 1999. He gave oral evidence to the Tribunal and the Tribunal member asked him a number of questions about his case.

The applicant had also provided a type written statement to the Tribunal which was attached to his application for review.

The applicant claimed to have a well founded fear of persecution in his native China due to his political views and activities.
He said that he had been detained by the Public Security Bureau for a month as a result of his political actions in the pro democracy movement in 1989. He also said that he had been dismissed from his work unit in 1993 because of his political views and activities.

After November 1996 he claimed to have found out that he was on the investigation list of the Public Security Bureau. Fearing persecution he decided to leave the country.
The applicant arrived in Australia on 1^st March 1997.On 10^th July 1997 he lodged an application for a protection visa. A delegate of the minister refused his application in 8^th December 1997 and on the

19th of that month he sought a refuse by the Refugee Review Tribunal 10.17.19.
The Tribunal was not satisfied that the applicant had a well founded fear of persecution. The Tribunal member at page 26 of the Court Book was dubious of the applicant's credibility saying:
The applicant did not impress me as a credible witness. He gave evidence in a confusing manner and was generally unable to articulate his claims with the confidence that one might have expected of one recounting genuine experiences. In particular, he struck me as having difficulty in responding to the Tribunal's questions, especially if they required him to provide responses in terms that were not already employed in his statement. As a result his responses were repetitive, given in a piecemeal manner and were incoherent.
The Tribunal went on to describe other concerns about the credibility of the applicant's evidence. The Tribunal member said at page 27 of the Court Book:
In view of the above problems I have grave concerns about the reliability of the applicant as a witness and the credibility of his claims. These problems ultimately lead me to find that the applicant has either grossly exaggerated his experiences or completely fabricated his claims. Either way I am left unsatisfied that his claims are genuine.
The applicant filed an amended application which I received in Court on 4^th August 2005. This application was prepared with the assistance of a panel solicitor who gave him certain advice. The solicitor did not appear for the applicant at the hearing.
In his amended application the applicant seeks these orders:
1)a writ of prohibition prohibiting the respondent from proceeding further with any action in respect of the decision of the Refugee Review Tribunal;
2) a writ of certiorari quashing the decision of the Refugee Review Tribunal;
3)an order that the decision of the Refugee Review Tribunal was made in excess of jurisdiction and is therefore null and void;
4)an order that the matter be remitted to the Refugee Review Tribunal to be reconsidered according to law by a differently constituted Tribunal.
The applicant provided particulars of his claim. The grounds that he relied upon stated briefly are these:
1)The Tribunal failed to take account of relevant material.
2)The Tribunal failed to carry out its statutory duty.
3)The Tribunal applied the wrong test; and
4)The Tribunal failed to carry out its functions in a bona fide manner.
The amended application sets out particulars to illustrate those four grounds.
The solicitor for the respondent Minister has filed a notice of appearance, a notice of objection to competency and an affidavit in support of the notice of objection to competency. In the notice of objection to competency the respondent Minister objects to the jurisdiction of this Court to try this application on the grounds that the applicant was notified of the RRT decision on 24^th February 1999 but he did not file an application for judicial review of that decision until

15^th June 2005. This means that he has not filed his application for review of the decision within 28 days of having been notified as required by sub-s.477(1A) of the Act.
Needless to say if the Court were to find that the decision was not a privative clause decision which would be the case if the applicant could not make out a ground for review, then the time limit would not apply and the application would not be incompetent.
As I said, the applicant was not represented at the hearing and he gave his submissions with the assistance of an interpreter in the Mandarin language. On the question of the competency of his application, in other words why he had not lodged his application within the time provided, he said that he had never been properly advised. He told the Court that he did not know anything about the Australian legal system. He had been in the immigration detention centre at Villawood for two months and before that he had been doing casual work.
He confirmed that his amended application had been prepared for him by a panel solicitor under the legal advice scheme. He does not read English and is not able to comment on the contents of the document. When asked to set out why he considered that the Refugee Review Tribunal had made an error he confined himself to a factual statement about the merits of the application for a protection visa. He said that if he were to return to China he would suffer from persecution.

He arrived in Australia in 1997 and converted to the Catholic faith in 2003.
For the respondent Ms Alex, solicitor, submitted that the amended application did not alter the applicant's position so far as these proceedings were concerned. She submitted that no jurisdictional error had been disclosed. She pointed out to the Court that the Tribunal had heard oral evidence from the applicant and that the Tribunal's decision had been based very largely on the applicant's credibility.

The unfortunate situation for the applicant is that the Tribunal did not accept the credibility of his claim.
Ms Alex referred the Court to the decision of the High Court in

Re Minister for Immigration & Multicultural Affairs ex parte Durairajasingham
[2000] HCA 1; 168 ALR 407. In respect of the competency ground Ms Alex pointed out that as there was no evidence of any reviewable error disclosed in the RRT's reasons not only should the application for review be dismissed with costs but that because the application is approximately six years out of time it is incompetent because a ground of review could not be made out.
She referred me to the recent decision of Ngu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 21 in which the Full Court upheld the judgment of Nicholson J at first instance to the effect that an application for a review of a privative clause decision lodged outside the mandatory time limits in s.477 is incompetent if a ground of review cannot be made out.
Looking at the grounds raised in the applicant's amended application the applicant claimed first of all that the Tribunal failed to take account of relevant material. The evidence for this was said to be that the Tribunal took no account of the applicant's claim that he was on the investigation list of the Public Security Bureau. This submission was based on the fact that even though the Tribunal had given an analysis of the applicant's case in the section of the decision headed:
Findings and reasons -
it could be assumed that where a piece of evidence had not been referred to as was the case here, that it was not taken into account.
This submission is clearly in error. It is quite clear that a Tribunal in giving its reasons is not required to refer to every individual item of evidence.
Turning to the ground that the Tribunal failed to carry out its statutory duty, the amended application claims that the Tribunal did not carry out a complete review of the application to finality. The amended application refers to the statement at page 27 of the Court Book to which I have previously referred, in particular the finding that the applicant has either grossly exaggerated his evidence or completely fabricated his claim. The submission is that for claims to be grossly exaggerated they must have some basis in truth.
As a result, if the claim had a basis in truth the Tribunal, it is said, should have considered the extent to which those claims were true and whether the actual situation of the applicant was capable of amounting to persecution. The submission goes that by failing to do this the Tribunal failed to carry out its statutory duty. In my view, this submission is misconceived.
In that same passage on page 27 of the Court Book after the finding that the applicant either grossly exaggerated his experience or completely fabricated his claim, the Tribunal member goes on to say:
Either way I am left unsatisfied that his claims are genuine.
It is not necessary for a Tribunal to identify some possibility of truth which may or may not fall over the line of satisfaction.
The amended application contains the claim that the Tribunal applied the wrong test. This is based on a statement by the finding that the applicant's statement made no mention of any harm to himself and that that inconsistency further did damage to his credibility. Whilst it is true, as the applicant submits, that harm done to someone else can lead to a fear in another person when considered in context it is clear that the Tribunal's statement is merely another reference to the Tribunal's lack of faith in the credibility of the applicant's evidence.
The final ground is that the Tribunal failed to carry out its function in a bona fide manner. The particulars of this is that at page 26 of the Court Book the Tribunal criticised the applicant for trying to restrict answers to the matters set out in his earlier statement and that when the applicant raised matters that were not in his original statement the Tribunal was also critical of him and disbelieved him.
The submission goes that this process of reasoning does not disclose that the Tribunal brought an open mind to its review. The short answer to that submission is no, it does not disclose that. An allegation that a Tribunal failed to carry out its function in a bona fide manner is a serious allegation and it needs to be supported by evidence.

The criticism of the Tribunal's finding as to the applicant's credibility does not to my mind go near to showing that the Tribunal failed to act in a bona fide manner or failed to deal with the matter with an open mind.
It is quite clear on reviewing the decision of the Tribunal as a whole that the main reason for the Tribunal to reject the applicant's claim was that the Tribunal member was not satisfied with the credibility of the applicant's evidence. It is now trite law that a Court exercising the power of judicial review will not interfere with a finding by the Refugee Review Tribunal on the credibility of an applicant.
In dealing with a claim that the Tribunal breached s.430(1) of the Migration Act 1958, by failing to set out reasons for its finding that an applicant's claim was utterly implausible the High Court had this to say:
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 be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision not the subset of reasons why it accepted or rejected individual pieces of evidence.
I refer to Re Minister for Immigration & Multicultural Affairs ex parte Durairajasingham [2000] HCA 1; 168 ALR 407 per McHugh J at paragraph 67. In my view the decision of McHugh J in Durairajasingham is an effective answer to the points raised in the amended application. I have read the decision as a whole, as I note that the applicant was not represented at the hearing. I note that he did attend the hearing and gave oral evidence as well as providing a detailed statement.
The Tribunal member asked the applicant a number of questions about his evidence. There is nothing to show that there was any procedural unfairness in this approach nor can I see any denial of natural justice.

I am not satisfied that any other jurisdictional error has been disclosed in the decision of the RRT. There is certainly no evidence, as I have said before, that the Tribunal member did not approach the task in a bona fide manner.
I find there is no reviewable error. There is no jurisdictional error.

The decision of the Tribunal is a privative clause decision.

The application for review of that decision has been brought out of time. The application was lodged more than six years after the applicant was notified of the decision and it clearly does not come within the 28 days specified in s.477(1A) of the Migration Act.

This means that the application is not competent. I propose to order that the application be dismissed and I find that the application is not competent.
There is an application for costs. The applicant has been wholly unsuccessful in his claim. In cases such as this it is appropriate for the successful party to be the beneficiary of a costs order. The applicant says that he has no money and I note that he is currently in immigration detention and has been for several months. I accept that he has no funds available to meet this order. That is not a ground for the Court to refuse an order for costs. It is however a matter that the Court should take into account when considering time to pay. I propose to make an order allowing the applicant four months to pay.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 31 August 2005