SZGUM v Minister for Immigration
[2006] FMCA 1419
•7 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGUM v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1419 |
| MIGRATION – Review of decision of Refugee Review Tribunal – |
| Judiciary Act 1903 (Cth), s.39B Migration Act1958 (Cth), ss.91R; 424A(1); 424A(3); 424A(3)(b); 425; 425A; 427(1)(b); 474; pt.8 div.2 Federal Magistrates Court Rules 2001, sch.1 |
| SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 |
| Applicant: | SZGUM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1910 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 7 September 2006 |
| Date of last submission: | 7 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 7 September 2006 |
REPRESENTATION
| The Applicant appearing on her own behalf |
| Solicitors for the Respondent: | Mr L. Leerdam, Phillips Fox Lawyers |
ORDERS
(1)I order that the applicant pay the first respondent's costs in the amount of $4000.
(1)I also order that the first respondent's name be amended to Minister for Immigration & Multicultural Affairs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1910 of 2005
| SZGUM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND ANOR |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth)for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 31 May 2005. The Tribunal decision affirmed a decision of the delegate of the first respondent dated 16 February 2005.
The applicant was born on 23 September 1963 and claims to be a citizen of the People's Republic of China (“the PRC”) and of Christian faith.
The applicant arrived in Australia on 13 November 2004, having legally departed from Baiyun Airport on a passport issued in her own name and a subclass 676 visa issued on 14 October 2004.
On 10 December 2004, the applicant lodged an application for a protection (class XA) visa with the Department and in her protection visa application made the following claims:
“When I was in China, I was a housewife, and was active with the activities to strive for freedom of religion in China. I am a Christian and could not enjoy freedom of religion in China. When we gathered at friend’s home, we were regarded to have illegal underground religious gathering and would be detained and penalized. When I was in China, I was the head in our town to organize activities to strive for freedom of religion in our area. We printed leaflets to send to friends’ homes to try to persuade them to be one of us to ask for more freedom of religion. In early 2004, when we were gathering at our friend’s home, we were caught and sent to nearby police station. There, we were questioned and beaten. They accused us of attending illegal gathering and I became target. I was detained for 4 days, and forced me to disclose other friends who were involved with the gathering. They asked us where I had printed those leaflets and what I had done with them. I was released as no other evidence was found. However, they supervised me, I could see people around my home very often, and I lost freedom. We could never attend any of our religious activities any more. With help of my friend, I got my passport to come to Australia. I hope that Australian government can help me for my safety.”
On 16 February 2005, a delegate of the first respondent refused the applicant's application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
The Tribunal proceeding
On 21 March 2005, the applicant lodged an application for review of the delegate's decision with the Tribunal. In support of her review application the applicant made the following claims:
“ I am a Christian and I could not enjoy freedom of religion in China. We got together to try to ask for more freedom of religion, we printed leaflets to send to friends homes to persuade them to join in our activities. Police caught me at my friend’s home when we had gathering there. I was tormented for 4 days, and lost freedom since then. I could not stay in China any more. For my safety reasons, I came to Australia for protection.”
The applicant attended a hearing by the Tribunal at which she gave evidence with the assistance of an interpreter. The Tribunal had before it the Department's file. The Tribunal noted that no additional claims were made by the applicant in her application for review.
The Tribunal then noted the exchange it had with the applicant about the exploration of her claims and particular concerns held by the Tribunal about the applicant's evidence. The Tribunal summarised the applicant's claims as follows:
“The Applicant claims that she is denied religious freedom in China and that prior to her arrival in Australia she was detained for a period of four days for distributing Christian literature. The Applicant claims she fears ongoing denial of religious freedom on her return to China and harm from the authorities by reason of her religious beliefs.”
The Tribunal accepted that the applicant is a Christian and that, her beliefs included the notion of helping others. The Tribunal noted that, in the PRC, the applicant did not attend a church, rather she attended a house church and, in Australia, she attended a congregational church. The Tribunal did not accept that the applicant is committed to a particular type of Christianity.
The Tribunal considered the applicant’s claim that there was a perception in the PRC that she was associated with Christian Shouters. The Tribunal noted that, whilst the applicant herself did not consider herself to be a Shouter, she expressed concern that she may be persecuted because of the perception in the PRC that she is a Shouter. However, the Tribunal found that she was not able to provide details about Shouters and that she was not a member of the Shouter sect. In the circumstances, the Tribunal did not accept that the applicant would be perceived by authorities to be a Shouter in the PRC.
In relation to the applicant's claim of arrest and detention for the distribution of Christian literature, the Tribunal found the applicant's claims to be “vague”, particularly, about the nature of the literature she claimed to have been distributing. The Tribunal noted that, at one point in the hearing, the applicant described the literature as gospels and then later stated they were invitations to a prayer group.
The Tribunal noted that the applicant had stated that she was arrested in May 2004 and taken to the local police station where she was held for four days. The Tribunal noted that the applicant stated in oral evidence before it that she was accused of circulating the gospel but that she was released because the police did not have any substantive evidence to prove that she was in fact doing this. The Tribunal noted that the applicant was unable to explain or clarify a concern expressed by the Tribunal that it regarded it as odd and inconsistent that on the one hand the applicant claimed to have been caught handing out literature, but that on the other hand, she was released by authorities for want of evidence. The Tribunal was not satisfied that the applicant was detained in the PRC for the distribution of Christian literature and further found that it was not essential to the applicant's Christianity to express her religion by way of distribution of leaflets.
The Tribunal
did note and have regard toconsidered country information before it that indicated that there were limitations placed on religious freedom in the PRC and that persons may face imprisonment from authorities, if they were to engage in certain religious practices, or associated with particular groups which were banned. However, the independent information was not relevant to the Tribunal's conclusion that it did not accept the manner and form by which the applicant practised her religion, both since her arrival in Australia and whilst in the PRC, as being the type of religion subject to legal restrictions in the PRC, either in the past or in the reasonably foreseeable future.The Tribunal was not satisfied that the applicant had been required to modify her practice of her Christian religion in the PRC, nor that she would be required to modify her religious practice were she to return to the PRC. The Tribunal did not accept that the manner in which the applicant practi
cses her religion,andnor any restrictions that may be placed upon her as a result, constituted serious harm pursuant to s.91R of the Act. For those reasons the Tribunaliswas not satisfied that the applicant's fear of harm was well founded and concluded that, in the circumstances, she was not a person to whom Australia has protection obligations.
The proceeding before this Court
The applicant was unrepresented before the Court this afternoon, although had the assistance of an interpreter. I explained to the applicant the limited role of the Court in the conduct of judicial review of the Tribunal's decision and invited her to make whatever submissions she wished in support of her application. The applicant confirmed that she relied upon the grounds identified in her further amended application, filed in this Court on 27 February 2006:
“1. The Tribunal failed to carry out its statutory duty
Particulars
(a) The only information before the Tribunal was that contained in the First Respondent’s file and that given to the Tribunal by the Applicant.
(b) The Tribunal was required to provide particulars of the information that was the reason, or part of the reason for affirming the decision. Migration Act 1958 s. 424A. The Tribunal also was required to explain why the information was relevant and provide the Applicant with an opportunity to comment upon it.
(c) The above particulars had to be provided in writing
SAAP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDUSTRIAL AND ETHNIC AFFAIRS [2005] HCA 24 (18 May 2001)
McHugh J.
para 68 “…The assumption that no breach of s.424A occurs if the applicant has otherwise been given procedural fairness overlooks the imperative nature of the decision. Nothing in the section suggests that fairness in the way in which the Tribunal observes it statutory obligations is an implied limitation on its operation. The section describes a procedural step that, if enlivened by the circumstances of the case, the Tribunal is required to take in every case. Further, the, mandatory nature of the obligation in s. 424A(2)(b) points to the conclusion that the failure to provide in writing to the applicant particulars of the adverse material and the invitation to comment upon it amounts to a breach of s. 424A.”
para 71 “…However, in the absence of any qualifying terms the natural meaning of the section is that the Tribunal is compelled in all circumstances to provide the information in writing.”
Para 77 “…If the requirement to give written particulars is mandatory, then failure to comply means that the Tribunal has not discharged its statutory function… it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act … a decision made after a breach of s. 424A is invalid.”
Hayne J.
Para 180 “I consider that the Tribunal was bound to give the appellants written notice of that information and to ensure, as far as reasonably practicle that the appellants understand why it was relevant to the review. The Tribunal failed to do so constituted jurisdictional error.”
Para 208 “…whether those steps would be judged to be necessary or even desirable in the particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case.”
(d) The information to be given extends to that information given by the Applicant to the First Respondent as part of her application for a visa
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v AL SHAMRY (2002) 110 FCR 27
Para 17 “…..In our view, ‘applicant’ wherever appearing in s. 424A means ‘application for review by the Tribunal of a Ministerial decision’ and ‘application’ correspondingly means the proceeding before the Tribunal which is the vehicle for such a claim for review.”
The court did not accept the Ministers argument that “Application” in the context was said to mean “all information given by the applicant to officials in the Department (including that provided to the Tribunal) for the purposes of determining whether to grant a protection visa to the applicant.”
(e) The Tribunal based it’s findings on information, or lack of information, contained in the Applicant’s application for a visa and was required, by s. 424A, to give particulars of the information, explain why the information is relevant and provide the Applicant with an opportunity to comment upon it. The Tribunal’s failure to so act was a jurisdictional error.”
The applicant, in her further amended application, essentially complains that there was a breach by the Tribunal of its obligations under s.424A(1) of the Act. However, the grounds as identified are unparticularised and the applicant was unable to identify information that was used by the Tribunal, as part of the reason for affirming the decision under review on which was, not otherwise, information excluded from the obligations of s.424A(1) by operation of s.424A(3) of the Act.
The applicant told this Court that the persecution did not happen and questioned why the Tribunal did not believe her. She said she thought that “they should have a closer look at the claims I made because they were all true.” The applicant reiterated that if she were to go back to the PRC she will be persecuted.
I now consider the ground identified by the applicant in her further amended application. As I have already stated, there are no particulars of how the Tribunal offended s.424A(1).
The Tribunal made clear that there were no additional claims before it, either in the applicant's written statement in support of the review application or in the applicant's oral evidence, that were inconsistent with any of the claims made by the applicant in her protection visa application.
To the extent that the Tribunal relied on any inconsistency in the applicant's evidence, it was in respect of inconsistencies in her oral evidence given to the Tribunal at the hearing. The essential reason why the Tribunal did not accept the applicant's claims about detention is because the Tribunal considered it odd and inconsistent that the applicant claimed on the one hand to have been caught handing out literature, but, on the other hand, to have been released for want of evidence. The Tribunal noted that the applicant was unable to explain or clarify the point other than reiterating her claim.
It is clear that the evidence, upon which that finding is based, was information given by the applicant to the Tribunal in oral evidence. In those circumstances, the information relied upon by the Tribunal as part of the reason for affirming the decision under review is information provided by the applicant to the Tribunal and is therefore excluded from the obligations of s.424A(1) by operation of s.424A(3)(b) of the Act.
There is no finding or conclusion made or arrived at by the Tribunal that arises from any information that would attract the operation of s.424A(1) and for those reasons this ground is not made out.
In accordance with duties of the first respondent as a model litigant,
Mr Leerdam, on behalf of the first respondent, properly drew the Court's attention to a letter sent to the applicant shortly before the nominated hearing date. The Tribunal commenced the letter with the words:
“Please be advised that your original hearing time of 9.30 on 13 May 2005 has now been changed to a later starting time of 1.30 pm.”
The letter nominating 13 May 2005 at 9.30am was sent to the applicant on 11 April 2005 to the applicant's residential address as identified on the application for review. I note there is no authorised recipient nominated by the applicant. The letter
otherwisesets out the day, time and place at which the hearing is to take place and is otherwise a letter sent in accordance with the Tribunal's obligations pursuant to ss.425 and 425A of the Act.The first respondent sent a further letter to the applicant on 9 May 2005, at the same address, advising her that the hearing time was changed from 9.30 am on 13 May 2005 to 1.30pm on 13 May 2005. The first respondent submits that the Tribunal was doing no more than adjourning the hearing time and that the Tribunal has power to adjourn a review from time to time pursuant to s.427(1)(b) of the Act. Section 427(1)(b) of the Act is in the following terms:
“For the purpose of the review of a decision, the Tribunal may:
(b) adjourn the review from time to time”
The first respondent referred to the decision of Bennett J in SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 where Her Honour held that a letter, sent by the Tribunal following a s.425 invitation, stating that, “due to circumstances beyond our control”, the nominated hearing would not take place and was deferred for a “new hearing,” being a date less than 14 days later. Her Honour
notedconcluded that, in considering whether such a letter was intended to be a fresh invitation and therefore required compliance of s.425A of the Act or an adjournment of the hearing,she concluded thatthe effect of the letter was to defer the hearing and allocate a new hearing date. Her Honour referred to the Shorter Oxford English Dictionary and the Macquarie Dictionary as to the definition of “adjourned”, she noted that such definition included defer or put off or suspend.Her Honour
alsoconcluded that, by referring to “your new hearing”, the Tribunal was intending to refer to a new hearing date rather than a new hearing.In circumstances, where a hearing is adjourned, there is no prescribed time for notification of the adjourned hearing date, as there is with an invitation sent pursuant to ss.425 and 425A of the Act.
In the case before this Court the terms of the letter make it quite clear that the Tribunal was intending to change the starting time of the hearing and was not intending to nominate a time for a new hearing.
However, the first respondent submits that, even if I was to be wrong in that analysis and the letter of 9 May 2005 is indeed an invitation that requires compliance with ss.425 and 425A of the Act, a breach of which would amount to jurisdictional error,
in my view,it would not be appropriatein the exercise of discretionto grant reliefhaving regard to the [?] consequencesfor the following reasons;.
The hearing was deferred for 4 hours;
The applicant attended the hearing;
There was no complaint by the applicant about the change of time;
There is no evidence of any prejudice to the applicant arising out of the conduct of the Tribunal in deferring a hearing time.
I agree with those submissions.
In balancing the interests of justice between the parties, I also have regard to the interests of the community in having administrative decisions finalised. Accordingly, for the reasons referred to above, I would not exercise a discretion to grant relief, in the event that the Tribunal is found to have committed jurisdictional error by failing to comply with its obligations under ss.425 and 425A of the Act.
The findings and conclusions of the Tribunal were otherwise open to the Tribunal on the evidence and material before it and the decision is not affected by jurisdictional error. Accordingly, this Court, pursuant to s.474 of the Act, has no jurisdiction to interfere and the application is dismissed.
RECORDED : NOT TRANSCRIBED
The first respondent seeks costs fixed in the amount of $4000. I note that it is the old sch.1 of costs that applies in respect of the Federal Magistrates Court Rules 2001. I note that the costs provided for in that schedule are in excess of the sum sought. I note also that the total sum expended by the first respondent is in excess of $5000. Accordingly, I am satisfied that the amount sought is reasonable.
ORDERS DELIVERED
I certify that the preceding thirty-two (320) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 15 25 September 2006
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