SZGWR v Minister for Immigration
[2007] FMCA 369
•22 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGWR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 369 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class AZ) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 424A, 441A, 483A |
| Applicant VEAL of 2002 v Minister for Immigration (2005) 222 ALR 411 SZEEU v Minister for Immigration [2006] FCAFC 2 |
| Applicant: | SZGWR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2051 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 7 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 March 2007 |
REPRESENTATION
| Solicitor for the Applicant: | Mr M Churchill of Martin Churchill Solicitors |
| Counsel for the Respondents: | Mr J Smith |
| Solicitors for the Respondents: | Ms A Mansour of Clayton Utz |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 3 August 2005 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 |
SYG 2051 of 2005
| SZGWR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| 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 of Australia on 3 August 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 20 December 2002, affirming a decision of the delegate of the first respondent made on 26 March 1997, refusing to grant the applicant a Protection (Class AZ) 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 “SZGWR”.
A Court Book ("CB") prepared by the respondents’ solicitors was filed in these proceedings on 19 October 2005 and is marked "Exhibit A". A secondary Court Book ("CB2") was filed in the proceedings on 3 November 2005 and is marked "Exhibit B". Both documents were read into evidence.
Background
The Tribunal decision of R Fordham, reference N97/14874, provides the following background information. The applicant, who claims to be a citizen of the People's Republic of China (“the PRC”), arrived in Australia on 14 October 1995. On 22 December 1995, the applicant lodged an application for a Protection (Class AZ) visa with the Department of Immigration under the Act. On 26 March 1997, a delegate of the Minister refused to grant a protection visa and on 11 April 1997 the applicant applied to the Tribunal for a review of the delegate's decision.(CB 202)
When the applicant lodged his original visa application on 22 December 1995, he indicated that his name was [withheld] but that he was also known as [SZGWR].(CB 204) Attached to that application was a statement of his claim for protection in Australia.(CB 205) Later, in a document dated 4 November 1996, the applicant informed the Department that his real name was [SZGWR] and gave different reasons for fearing persecution in the PRC.(CB 207-208) Throughout the review process by the Tribunal, the applicant made a number of claims and submitted a number of statutory declarations from both himself and other people. In essence, his claim was that he feared persecution in the PRC for reason of his political opinion, both in connection with a pro‑democracy demonstration in 1989 and his illegal departure from the PRC to Saipan in 1992. The applicant also made claims in respect of religion, namely his adherence to the Tin Tao faith, and in respect of his family.
Tribunal’s Findings and Reasons
The applicant attended hearings before the Tribunal on 23 February 1998, 5 March 1998 and 20 September 1999. The hearings were conducted with the services of a Mandarin interpreter. Prior to the Tribunal hearing, the applicant obtained the services of a different representative, who sought more time for instructions. An early adviser also requested a full copy of the documents on the Departmental files. The Tribunal found that the applicant had fabricated his claims. By and large, this was because of the way in which the claims were made, most of them emerging very late in the review process. The Tribunal concluded that the applicant had no real fear of persecution in the PRC for a Convention reason and so affirmed the decision of the delegate to refuse the grant of a protection visa.
Application for Review of the Tribunal’s Decision
On 3 August 2005, the applicant filed an application for review under s.39B of the Judiciary Act. At the commencement of the hearing, the solicitor representing the applicant sought leave to file in Court an amended application which contained the following grounds:
The Tribunal fell into reviewable error by failing to provide the applicant with a copy of another person's application which the Tribunal relied upon:
Particulars:
(i) The Tribunal referred to and gave some reliance upon another person's application (not being that of the applicant's), which "had similarities to this application" (P11 and 12 decision record). The similarities between the two people's application included some common addresses and associations, including being associates of each other (P12 decision record).
(ii) The Tribunal asked the applicant questions about other people's applications, without giving the applicant a copy of that other person's application, contrary to the provisions of sections 424A and 476(1) of the Act.
Submissions and Reasons
Mr Churchill, for the applicant, referred the Court to the Tribunal decision under the heading "Claims and Evidence":
The Tribunal had before it another application which had similarities to this application. The addresses of the applicant in that matter.
The claims in that application indicate that this applicant was associated with the other applicant during the pro-democracy period.
One of the statements also referred to the applicant being associated with other applicants in the pro-democracy activities.
I raised with this applicant, who claimed he did not know any other person who had applied in this way.
He later admitted that he had met another person in the migration agent's office the same day he was there.
He claimed that he knew nothing of the details in the first application, as he signed the application form before any details were added.
However, when I put to him that, according to one of his written statements, he had claimed that the "snakehead's brother" had told him not to tell his actual story but to use false details provided by the snakehead, who said that was so but that it was verbal and that he didn't know what the actual claims were.
I put to him that, in any event, he knew they were false.
He agreed that was the case but again said he didn't know what they were.
I drew the applicant's attention to memos of changed addresses on the departmental file (folio 31) and the other applicant had stated that they were changing address.
I said that I found his earlier statement that he had never met this man until the day he went to the migration agent's office to lodge his application difficult to accept, since the note gave the impression they were living together and were moving to a new address together.
The applicant claimed that when he came into the country he used an address as a mailing address, though it wasn't the actual address he lived in.
I put to the applicant that information before me showed that his province and country were notorious for illegal immigrants and people‑smuggling exercises (see: 7 August 1993 (CX794) and DFAT cable HK7283 of 29/5/96), and penalties for illegal departure were not, of themselves, Convention-related.(CB 211-212)
Mr Churchill then referred to the section of the Tribunal decision, where he alleges the second issue arose:
I put to the applicant that DFAT advice and that, from a dissident, Wu'er Kai Xi, was that people of low profile or participants or supporters were not treated harshly.(CB 213)
Mr Churchill then referred to the Tribunal's "Findings and Reasons", where it made reference to the DFAT report and the advice from the well-known dissident Mr Wu'er Kai Xi.(CB 231) Mr Churchill submits that this demonstrates that the Tribunal failed to comply with s.424A(1) by not providing the applicant with any of the documents in respect of the other person's application, or a copy of the DFAT report which contains the details of the dissident, Mr Wu'er Kai Xi. Mr Churchill submits that the applicant must be given certain information in accordance with s.424A of the Act:
(1) Subject to subsection (3), the Tribunal must:
(a) give the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonable and practical, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
Mr Churchill submits that both subsections (a) and (b) have not been complied with. Reference was made to s.424A(2), which sets out the manner in which the information must be provided, with each of those methods specified in s.441A. Mr Churchill argued that none of those methods were adopted or complied with.
Mr Churchill, in support of his contentions, relied on SZEEU v Minister of Immigration [2006] FCAFC 2 at [215] per Allsop J:
In my view, in the light of SAAP, in circumstances where one is faced with a decision of the Tribunal with reasons and the complaint is a contravention of s 424A(1), the question to ask, by reference to the reasons of the Tribunal in the context in which one finds them (as revealing what would be the reason or a part of the reason for affirming the decision immediately prior to the making of the decision), is whether the information in question was a part (that is any part) of the reason for affirming the decision. To the extent that the reasons of the relevant majorities in Paul and VAF can be seen to require that the relevant part of the reason have a stature or importance, or be of a character, which would make it unfair not to invoke the procedures of s 424A, I think SAAP requires that such an approach be rejected. It is only necessary that the information be a part of the reason.
Mr Churchill also referred to Weinberg J’s decision in that case at [108] to [111] and [115].
Mr Smith, for the respondents, in response to the first contention raised by Mr Churchill, referred to the Tribunal decision under the subheading "The Applicant's Original Claims ":
I have carefully considered the material and the situation of the two applications and, while both men came from the same province and used the same go-between and same address for mail purposes I find no more relationship between the two cases and although I am of the view that the two men did know each other in Australia before the applications were made I consider them to be separate and unrelated in regard to the situation in China and draw no adverse [inferences] because of this situation.(CB 230)
Mr Smith submits that although these issues were raised with the applicant (and summarised at [8] above), the Tribunal member did not rely on any of that material in its decision, and made a clear statement to that effect. Consequently, s.424A(1) is not enlivened.
In support of this submission, Mr Smith also referred to Allsop J in SZEEU at [216]:
That said, it is necessary to recognise the guidance that one nevertheless receives from aspects of [33] in VAF. One always needs to analyse and interpret the reasons of the Tribunal in order to understand the reason for the ultimate reason or conclusion of the lack of satisfaction of the existence of protection obligations. Merely because something is contained in the text of the reasons of the Tribunal which involves “information” does not conclude the question whether it was (and, in the relevant sense, would be) a part of the reason for affirming the decision. The whole of the written reasons must be analysed and interpreted in their context to assess why it was that the Tribunal acted as it did (and so, in the relevant sense, to assess what would be, prior to making the decision, the reason or a part of the reason). Having thus ascertained the reason or reasons (if there be more than one) why the Tribunal was not relevantly satisfied, any information that was (and thus, in the relevant sense, would be) a part of the reasoning process to explain such reason engages the operation of s 424A, without any additional requirement (for which Paul and VAF appear to call) that the relative importance of the information to the reasoning process be assessed to form a judgment as to whether fairness requires the engagement of s 424A. The above tasks of assessment or interpretation of the Tribunal’s reasons, of ascertaining what was any reasoning process and of assessing the relevance of any information thereto may not be straightforward and may lead to conclusions about which minds may differ.
Mr Smith submits that, while it is accepted that the procedure required to be followed by the Tribunal includes an observance of s.424A where it applies, there was no such obligation in this case. Section 424A(1) requires the Tribunal to give particulars to an applicant of any information that the Tribunal "considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Where a Tribunal says in its decision that it does not act on particular information, then it is clear that there is no obligation under s.424A in respect of that information, see Applicant VEAL of 2002 v Minister for Immigration (2005) 222 ALR 411 at 414 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ:
[12] It is as well to explain why that was so. As for s 424A, it is enough to notice that that provision is directed to “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. The tribunal said, in its reasons, that it did not act on the letter or the information it contained. That is reason enough to conclude that s 424A was not engaged…
In this case, the Tribunal carefully considered the material and situation of the two applications but, in its words, it drew "no adverse [inferences] because of this situation".(CB 230) In other words, it did not rely on the information that there was an application similar to the applicant's made by another person. For this reason, the Tribunal had no obligation under s.424A in respect of that information and this ground cannot be sustained.
The second piece of information relates to the DFAT report about Mr Wu'er Kai Xi. The Tribunal decision reproduces part of that DFAT report which says:
We confirm that the PRC authorities have not treated harshly people who merely participated in demonstrations and rallies, signed petitions, or collected money in support of the protest activities. There was at least one million people involved in such activities in Beijing alone in May/June 1989. The authorities have taken strong punitive action only against high-profile activists and leaders of the organisations that the PRC government regard as illegal. DFAT cable BJ1854 21-9-92.(CB 231)
Mr Smith contends that this information falls within the exception in s.424A(3). The information is information about other persons and not specifically about the applicant.
I am satisfied that Mr Smith is correct in his interpretation of s.424A. I agree with his submissions that this section is not enlivened in this case and that the application should be dismissed.
The issue of delay, of two and a half years from the date of the Tribunal decision to the application filed in this Court, was also raised. As no jurisdictional error in the Tribunal decision has been established, I do not believe that the exercise of discretion issue need be addressed.
Conclusion
I am of the view that none of the arguments of alleged jurisdictional error on the part of the decision‑maker can be sustained. Consequently, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 20 March 2007
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