SZGPC v Minister for Immigration - [2006] FMCA 416

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGPC v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 416

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474, 483A

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Chen v Minister for Immigration & Multicultural Affairs [2001] FCA 1671
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR
[2003] FCAFC 126
Minister for Immigration & Multicultural & Indigenous Affairs v WAAG
[2003] FCAFC 60
Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273
Muin v Refugee Review Tribunal (2002) 190 ALR 601
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Re Minister for Immigration & Multicultural Affairs, Ex parte Lam (2003) 195 ALR at 502
Refugee Review Tribunal, Re; Ex parte Aala (2000) 204 CLR 82
Re Ruddock (in his capacity as Minister for Immigration & Multicultural Affairs) & Anor; Ex parte Applicant S154/2002 [2003] HCA 60
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] HCA 24
SBBG v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCAFC 121
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2

Applicant:

SZGPC

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG1654 of 2005

Judgment of:

Lloyd-Jones FM

Hearing date:

22 March 2006

Delivered at:

Sydney

Delivered on:

10 April 2006

REPRESENTATION

Applicant:

Applicant appeared in person with the assistance of a Mandarin interpreter

Advocate for the Respondent:

Ms A Nanson

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Refugee Review Tribunal is joined as the second respondent.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1654 of 2005

SZGPC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”), filed in the Sydney Registry of the Federal Magistrates Court on 27 June 2005 for a judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 17 June 2005 and mailed to the applicant on 20 June 2005, affirmed a decision of the delegate of the first respondent (“the delegate”) made on 2 May 2005 to refuse to grant the applicant a Protection (Class XA) Visa. The applicant seeks relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZGPC”.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 at [43], [91], [153] and [180].

Background

The Tribunal decision, in its opening paragraphs, records that the applicant claims to be a national of the People’s Republic of China and arrived in Australia on 18 December 2004. On 7 March 2005, he lodged an application for a Protection (Class XA) Visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Act. On 2 May 2005, a delegate of the Minister refused to grant a protection visa and on 10 May 2005, the applicant applied to the Tribunal for a review of the delegate’s decision (Court Book “CB” 84).

Applicant’s original visa application claims

In the Tribunal decision under the heading “Claims and Evidence”, is set out a summary of the applicant’s claims that he made to the Department in his protection visa application. The applicant claimed fear of persecution in China for the Convention related reasons of political opinion and membership of a particular social group (CB 87).
The applicant claimed he was born in Hunan in September 1971 and attended school there from 1978. He further claimed he lived in a city in Guangdong province from March 1998 to December 2004 and that he was a journalist from March 1998 to December 2004 with a named magazine. His passport issued in Hunan where he claimed to live up until 1998. He claimed he obtained a bachelor’s degree in 1995 (CB 87).
In his visa application, the applicant claimed that through his work as a journalist, he came to know some Falun Gong practitioners and he sympathised with them, although he made no claim of being a practitioner himself. He stated that he wrote some articles about the Chinese government’s repression of Falun Gong and that these articles were published in overseas newspapers and on a website. He claimed that the government became aware of his articles and as a consequence he lost his job as a journalist and it was for this reason that he left China (CB 87).
In his original visa application he stated that he was married in 2005, but made no reference at that point to having any children, or indicated any of this on the visa application form (CB 87).

Applicant’s revised claims

On 31 May 2005, the applicant submitted to the Tribunal a new statement which related to an entirely new set of claims. He stated that he had two children, both of whom were born outside of China’s family planning laws. The first child, being a son, was illegitimate until the applicant and his wife married. The second child, a daughter, was an “excess” or “black” child.
The second set of claims was in relation to the applicant’s identity.

He stated that he obtained a passport in someone else’s name, in order to avoid being detected over the Falun Gong article. Further, the applicant claimed that he was born in Fujian province (not Hunan), giving a different date by approximately five and half years. He claimed that he and his wife married in December 1999 rather than 2005 and that they lived in Long Tian Zheng district in Fuqing. He claimed his son was born in April 2001 and his daughter was born in September 2002. Also that he and his wife were fined RMB52,000 over the birth of their second child and that he had failed to pay the fine. Attached to that statement was a document purporting to be the marriage certificate between the applicant (under what he claims to be real name) and his wife. All the documents about the applicant’s marriage and his children refer to them living in Fuqing, Fujian (CB 88-89).
Further elaboration to these revised claims was made by the applicant during the Tribunal hearing. At the hearing before this Court, the applicant made further oral submissions explaining the substantial changes made in his claim and the reasons for these changes. I refer to these in my reasons below.

Tribunal’s findings and reasons

The Tribunal accepted that the applicant is a national of the People’s Republic of China. It also accepted his original claimed identity as being from Hunan and more recently from Guangdong. The Tribunal also found the applicant had no real difficulty obtaining the passport and that he appeared able to leave China without impediment (CB 95).
The Tribunal however, was not willing to accept the alternative identity claimed or that the applicant was from Fujian province. The Tribunal did not accept that the couple had a “black child” or that they were obliged to pay a fine in respect of this child. It was also not willing to accept the documentation supplied by the applicant in support of his claims. The Tribunal did not accept the applicant’s claim regarding the Falun Gong articles his association with the magazine and website. The Tribunal held the overall view that the applicant’s protection visa application was ill-judged, given the pattern of abandonment and reclamation of many of his claims, and that the applicant was not a reliable witness. The Tribunal was not satisfied that the applicant faced a real chance of Convention-related persecution in China. It was not satisfied that the applicant was a refugee nor that his claims of fear of persecution were well-founded. Therefore he is not a person to whom Australia has protection obligations under the Convention (CB 95).

Application for review of the tribunal decision

On 27 June 2005, the applicant filed an application for review under s.39B of the Judiciary Act 1903 setting out the following grounds:
1.If I go back to my country. I will be risk of suffering persecution. Within the meaning of the 1951 Convention relating to the status of Refugees and the 1967 protect relating to the status Refugees.
2.Member of RRT failed to understand my claim and failed to consider relevant matters. Further particulars to be provided.
3.The respondent refused to grand my protection visa application without any proper grounds and proper investigation.
4.I seek relief under s.38B of the Judiciary Act 1903 (Ch) on the grounds that the tribunal exceeded jurisdiction in the decision not to grant me a protection visa in the that it (1) I was not accorded natural justice. Further particulars to be provided.
(Copied without correction or amendment)

Reasons

The applicant appeared before me as a self-represented litigant with the aid of a Mandarin interpreter. The applicant is in detention at the Villawood Detention Centre. He originally appeared before a Registrar of this Court on 7 July 2005, at which time the applicant indicated that he wished to participate in the Court’s free legal advice scheme.

A timetable was set permitting the applicant to file an amended application in preparation for final hearing, listed for 9 September 2005. When the applicant appeared before me on that date, he indicated that he had not seen the panel advisor and was experiencing difficulty in preparing his case for hearing. I adjourned the matter for the applicant to receive the benefit of free legal advice.
For reasons which are not absolutely clear, there has been considerable difficulty in providing the applicant with the advice. The matter was adjourned on four separate occasions because he appeared before the Court indicating that he had not seen the advisor nor received any advice.
At the last directions date of 14 March 2006, a letter from the panel advisor reached the Court file, indicating that the advisor had seen the applicant in detention and subsequently forwarded to him written advice by both facsimile and mail. Consequently, I set the matter down for final hearing on 22 March 2006.
The applicant indicated to the Court that he had not filed an amended application or written submissions, but intended to address the Court with oral submissions in support of his application. He then embarked on an explanation of why the original application filed for his protection visa contained a number of false claims, which he subsequently withdrew, and replaced with new claims. He confirmed that all the original material concerning his involvement with the Falun Gong movement and various articles published in respect of that movement were false. So were his original identity and passport.
He stated to me that his real claim involves his breach of China’s family planning policy, particularly, the failure to initially register his marriage and the subsequent birth of his two children. He stated that his marriage was conducted as a traditional ceremony, but he had failed to notify the authorities and to register the marriage. He also initially failed to notify the authorities of his wife’s two pregnancies and the birth of his two children. He did later notify them of the subsequent registration of the marriage and birth of the first child. This was done a considerable time after those events. He explained the dilemma of his wife’s first pregnancy, which according to the authorities, was a pregnancy out of wedlock because of the failure to register the marriage. The applicant offered a list of relevant dates for all those events as a form of verification of their occurrence. However, as all this material was in the form of oral submissions from the bar table and not as sworn testimony, I do not believe it is necessary to record here a detailed chronology of these events.
The applicant then proceeded to describe the harassment that he and his wife had suffered from the various family planning officers who investigated them, resulting in a RMB52,000 fine for the second child. The applicant said that they were unable to pay this fine, which had already resulted in a period of detention because of the default. As the fine remained unpaid their future detention was inevitable. This prompted the applicant to borrow a passport from a colleague, change his identity and escape from China to avoid further harassment from family planning officers.
Ms Nanson, appearing for the respondents, submitted that the application filed on 27 June 2005 does not disclose any ground that identifies a jurisdictional error. In respect of the grounds pleaded in the application, Ms Nanson indicated that she relied upon the respondents’ submissions filed on 29 August 2005. Ms Nanson indicated that she would make further submissions in respect of the recent decision of SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 (“SZEEU”), which was handed down after submissions in this matter were filed. I will deal with the respondents’ pleaded grounds and written submissions and then return to issues raised by SZEEU.
The respondents’ written submissions raised three general observations in respect of the applicant’s pleadings, in that they fail to disclose any ground that would result in a jurisdictional error:
a)The grounds do not identify any requirement essential to valid action with which the Tribunal failed to comply: Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, per Gleeson CJ at [20].
b)No “inviolable limitation or restraints” in the Act are identified in the grounds as having been exceeded: Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, per Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [76].
c)Nor, if a broader view of jurisdictional error is taken, is any error of the requisite class disclosed by the Tribunal’s reasons: SBBG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 121 at [19]-[20], including a failure to afford a fair hearing, reasonable apprehension of bias, proceedings on misunderstanding of law at least in relation to defining its core task; also see Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 at [20]-[21] and Minister for Immigration & Multicultural & Indigenous Affairs v WAAG [2003] FCAFC 60 at [5].
The written submissions then addressed each one of the grounds in the applicant’s pleadings. In respect of ground one, the respondents interpret the pleading to be an assertion the applicant would be persecuted on return to China. It was submitted that this is an issue of fact and that the Tribunal found that it was not satisfied that the applicant faced a real chance of Convention related persecution if he returned to the PRC (CB 95). It was submitted that that was a factual finding reasonably open to the Tribunal. The respondents submitted, and I accept, that ground one does not disclose any legal error.
In respect of the second ground, the respondents interpret the pleading to be an assertion that the Tribunal failed to understand and consider the applicant’s claims. It was submitted that the assertion is not sustainable by reference to the reasons for the decision which disclose that the Tribunal well understood the claims and considered the material on which the applicant relied. In support of this contingent, the respondents refer to the Tribunal decision under the heading “Claims and Evidence” where the Tribunal stated:
The Tribunal has before it the Applicant’s DIMIA file, which includes the Applicant’s original protection visa application and the delegate’s decision record. The Tribunal has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. The Tribunal also has before it material that has been included in the Applicant’s RRT file. (CB 87.1)
The respondents submitted, and I accept, that the second ground does not disclose any legal error.
In the third ground, the applicant asserted that there were no proper grounds for the decision and no proper investigation. The respondents submitted that the Tribunal is not obliged to make enquiries of the applicant’s claims pursuant to either the Act or any common law obligation. The Tribunal is not required to actively assist the applicant in presenting his or her case, nor is it required to carry out an enquiry in order to identify what that case might be: Chen v Minister for Immigration & Multicultural Affairs [2001] FCA 1671; Abebe v Commonwealth of Australia (1999) 197 CLR 510 per Gummow and Hayne JJ at [187]:
Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant…
It is for the applicant to advance whatever evidence or arguments he wishes to advance in support of his contentions that he has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out. See also Re Ruddock (as Minister for Immigration & Multicultural Affairs); Ex parte Applicant S154/2002 [2003] HCA 60 at [57]
The third ground was not particularised and the applicant submitted no evidence or submissions to indicate where the Tribunal made these errors. The respondents submitted, and I accept the submission, that the statement of principle identified in the “Findings and Reasons” of the Tribunal correctly identified the matters it is required to consider in its decision-making process. The Tribunal was entitled to make its findings, in particular, that the applicant did not have a well-founded fear of persecution. The third ground cannot be sustained.
In the fourth ground, the applicant alleged a denial of procedural fairness, however the basis of this allegation was not identified or particularised. In the absence of any specific claim as to the nature of the denial of procedural fairness, the respondents have nominated a number of principles of procedural fairness that may be relevant and should be considered. The following principles are relevant:
a)The pleading bears the onus of making out a case of failure to accord procedural fairness: Muin v Refugee Review Tribunal (2002) 190 ALR 601 at [24].
b)If the obligation exists, it requires observance of fair decision making procedures: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [58]. What must be demonstrated is unfairness: Re Minister for Immigration & Multicultural Affairs, Ex parte Lam (2003) 195 ALR 502 at [34].
c)Fairness is not an abstract concept. It is essentially practical. Whether one talk in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice: Re Minister for Immigration & Multicultural Affairs, Ex parte Lam at [37].
d)If a decision maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting their case against the taking of such a course: Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 at [74].
e)If, in making a decision, a decision maker is obliged to act with procedural fairness, the decision maker must give a sufficient opportunity to those directly affected by the decision to present material and arguments before the decision is made: Re Minister for Immigration & Multicultural Affairs, Ex parte Lam at [114].
The respondents submitted that in the present case, the Act lays down a particular framework for particular conduct by the Tribunal for its review of the decision of the delegate of the Minister: ReRefugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [60]. There was no material from which it could be inferred that the Tribunal acted other than in accordance with that framework.

Ms Nanson then raised the recent decision of SZEEU, which was handed down on 24 February 2006, subsequent to the filing of her written submissions which were in accordance with the consent orders made by a Registrar of this Court at the first court date. Ms Nanson referred the Court to the letter sent by the Tribunal to the applicant on

7 June 2005, which raised with the applicant a number of problems in his application (CB 91-93). In that letter, the Tribunal set out a series of questions, which identified and sought explanation for the changes and inconsistencies with substantial parts of the applicant’s original claim. The new claims were contained in a letter dated 31 May 2005 and in his oral evidence before the Tribunal on 3 June 2005. The Tribunal set out each issue which was in dispute and indicated to the applicant why this information was relevant to the ultimate decision and requested a response to each problem.
The applicant replied to the Tribunal by letter dated 12 June 2005.

In SZEEU at [221] the question of what is “information” was addressed by Allsop J, where His Honour rejected the proposition that, “the operation of s.424A(1) as limited to circumstances where the information imports some positive factual finding”. This clearly means that it is not possible to avoid the operation of s.424A if a Tribunal has merely pointed to an earlier statement as establishing a discredited inconsistency, but did not rely upon or accept the earlier information. Further at [225] per Allsop J:
If the Tribunal finds as relevant to its reasoning some inconsistency or incompatibility between earlier information and evidence to it as relevant to its reasoning that may well engage s.424A if such inconsistency or incompatibility can be seen to have been a part of the reason for affirming the decision.
I believe that the Tribunal took the appropriate steps to rectify this problem. In its letter to the applicant after the hearing it set out all the issues that it believed were relevant to its decision and indicated why they were significant to its reasoning. The applicant had changed his story between the time of his original application and the revised statement to the Tribunal and then again as evidence given to the Tribunal orally during the hearing. The Tribunal set out these changes or inconsistencies in his evidence and sought an explanation for the change. The Tribunal provided the applicant with an opportunity to respond, which he did prior to the Tribunal commencing its decision-making process.
Where an applicant is self-represented, the Court must independently consider whether an arguable case based on the material can been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. In order to fulfil this requirement, I have considered all the material contained in the Court Book and reconsidered the Tribunal decision to determine whether it is possible to identify any aspect of that decision that would give rise to jurisdictional error. There was nothing apparent in that process that suggests that the Tribunal failed to exercise its decision-making responsibilities in accordance with the Act. There is nothing recorded on the face of the documents available to indicate that the Tribunal did not comply with its obligation in this respect.

Conclusion

In the circumstances, I am satisfied that no jurisdictional error has been identified. Consequently, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter.

I order the applicant to pay the first respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 5 April 2006