SZHAX v Minister for Immigration
[2007] FMCA 1557
•17 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHAX v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1557 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 424A, 425, 476 FederalMagistrates Court Rules 2001 (Cth), rr.44.11(c), 44.12 |
| Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592 SZEPJ v Minister for Immigration and Multicultural Affairs [2005] FMCA 1639 |
| Applicant: | SZHAX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2420 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 27 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 17 September 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitors for the First Respondent: | Mr B Cramer of Blake Dawson Waldron Lawyers |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application filed on 30 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 2420 of 2005
| SZHAX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZHAX”.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act filed in the Sydney Registry of the Federal Magistrates Court of Australia on 30 August 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 13 July 2005 and handed down on 2 August 2005, affirming a decision of a delegate of the first respondent made on 12 February 2005, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
The applicant seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Migration Act. Pursuant to r.44.11(c) of the FederalMagistrates Court Rules 2001 (Cth), I dispensed with a hearing under r.44.12 and set the matter down for final hearing.
A Court Book (“CB”) prepared by the first respondent's solicitors was filed and served on 8 November 2005. I have marked it Exhibit “A” and it was read into evidence.
This matter was originally listed for final hearing on 16 April 2007. On that date, the applicant did not appear at the nominated time. The applicant was provided with a period of grace but was still not present when the matter was called within the Court precinct at 10.25am. The matter was dismissed due to the non-appearance of the applicant. On 10 May 2007, the applicant filed an application seeking reinstatement, which was supported by an affidavit. The matter was listed on 31 May 2007 and reinstated for final hearing on 27 June 2007.
Background
The Tribunal decision of J Silva, reference N05/50836, provides the following background information:
The Applicant, who claims to be a citizen of the Peoples Republic of China, arrived in Australia on 22 June 2004. On 22 July 2004, he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (the Act). On 12 February 2005, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant a protection visa and on 21 March 2005, the applicant applied for review of that decision.(CB 67)
The first respondent’s written submissions prepared by Ms L Clegg of counsel, sets out a summary of the applicant’s claims. I adopt paragraphs 9 and 10 of those submissions for the purposes of this judgment:
9. The applicant made detailed claims about his claim to be a Falun Gong practitioner. Those claims are set out in a statutory declaration attached to his visa protection application (RD 24), the review application to the Tribunal (RD 54-57), and were also summarised by the Tribunal in its decision at RD 69-71. The Tribunal also set out further details of the applicant’s claims arising out of the dialogue between the Tribunal and the applicant at the hearing: RD 71.6-75.6.
10. In short the applicant claimed:
a) he was introduced to Falun Gong in 1996;
b) from 1997 he had a friend, Mr Zhang, set up a Falun Gong ‘training station’ in a park in Shenyang City. The numbers of practitioners grew over the years from 20 to 3000;
c) despite Chinese government crackdowns on Falun Gong practitioners, he continued to practise because some members of his training station were Public Security Bureau (PSB) officials;
d) he was detained along with others at the end of July 1999 after a protest which he and Mr Zhang had organised. During the detention, which lasted one month, he was physically mistreated, including with an electric truncheon;
e) he was detained again in October 2001 after he was brought in to the local police station to join a ‘political class’. The purpose of the detention was for the PSB to find out who had been distributing Falun Gong promotional material. The applicant and others refused to co-operate with the investigation and police requests. After a few days detention at the police station the applicant was transferred to the Shenyang PSB detention centre where he was detained for a period of more than a month (although at the hearing the applicant said it had been a shorter period). During the detention the applicant was questioned about 4 or 5 times and various methods were used to torture him. He was released when his wife paid bribes to officials. His written claims stated that after the release he spent about one week in hospital. At the hearing the applicant explained that he had gone to a psychiatric hospital, with the aim of pretending to be mentally ill. At the hearing the Tribunal noted that the applicant’s claim appeared to be changing and raised questions about the veracity of the applicant’s claims;
f) a year later, in September 2002 he was again detained after being caught with a friend, Mr Yao, on a computer downloading Falun Gong information from the internet. Mr Yao had managed to find a ‘special method’ for breaking the Chinese government’s ‘block’ on Falun Gong websites. On this occasion, the local police officer was the uncle of Mr Yao’s girlfriend, so the detention was only for a week and the applicant and Mr Yao were released (for lack of evidence) after they paid a cash penalty. At the hearing the Tribunal doubted the applicant’s account of this incident;
g) he will never give up the Falun Gong struggle;
h) he decided to leave China in July 2003 because he was suspected of managing the local Falun Gong propaganda network by the Shenyang PSB;
i) after great difficulty in obtaining a passport due to his ‘black record’ Ms Wang (a friend who had previously been in his training station and who worked in foreign affairs in the Shenyang government) was finally able to assist him. Ms Wang obtained an Australian visa for the applicant in June 2004;
j) between July 2003 and leaving the country, he continued to carefully promote Falun Gong;
k) he intended to wait for Mr Zhang (whom Ms Wang was also help to obtain travel documents to leave the country), but left the country without him after learning that Mr Zhang had been arrested as the result of a PSB investigation and a confession by Ms Wang;
i) he will be subjected to persecution if he returns to China. At the hearing the applicant said that if returned to China he would contact his friends and ‘see what he could do. Perhaps that would not amount to much, but he feared he would be arrested like his friends’.
Ms Clegg’s submissions also contains a convenient summary of the Tribunal decision and I adopt paragraphs 11, 12 and 13:
11. In its reasons and findings the Tribunal comprehensively set out the dialogue which took place between the Tribunal and the applicant at the hearing, and pointed to the difficulties it had with the applicant’s claims and evidence.
12. The Tribunal tested the applicant’s claims to have been a Falun Gong practitioner principally by questioning and testing the applicant’s knowledge of Falun Gong principles and practice.
13. The Tribunal:
a) noted the applicant’s claims related to his imputed political opinion, his religion, and/or his membership of a particular social group. In this respect the Tribunal correctly identified that the claims arose solely in connection with his claimed Falun Gong adherence;
b) noted the striking nature of the ‘applicant’s hesitant responses to the Tribunal’s questions about Falun Gong’;
c) noted that the applicant’s ‘scant knowledge of the history and basic tenets of Falun Gong are not consistent with that of a genuine Falun Gong adherent, let alone a person who had made a serious effort to learn about it’. The Tribunal found that this was ‘compelling evidence that he is not a Falun Gong practitioner;
d) considered the conduct by the applicant in Australia in connection with his claims to have been a Falun Gong practitioner. To the extent that the applicant claimed to have been involved with Falun Gong in Australia the Tribunal concluded that the conduct ‘reinforces the Tribunal’s concerns and leads the Tribunal to conclude that the applicant is not a Falun Gong practitioner’;
e) found that the applicant’s approach to Falun Gong practitioners in Australia was ‘only to equip himself to pursue his refugee claims: he does not and never has had a genuine interest in or commitment to the belief system’.
f) concluded the applicant was an unreliable witness;
g) went on to state that it had considered all of the primary factual integers or components of the applicant’s claim and found nothing in the ‘unsubstantiated account which is inherently credible, and which must cast doubt on [the Tribunal’s] conclusion that [the applicant’s] refugee claims are entirely without foundation in truth.’ The Tribunal went on to explicitly reject each of the applicant’s primary factual claims.
h) concluded that it was not satisfied the applicant is or was ever a Falun Gong practitioner, or will be so perceived, or that he has suffered harm for that reason.
Application for Review of the Tribunal’s Decision
On 30 August 2005, the applicant filed an application for review in this Court under s.39B of the Judiciary Act. In accordance with orders made at the first Court date, the applicant was granted leave to file an amended application. On 6 December 2005, the applicant filed an amended application containing the following grounds:
Particulars
1. The Tribunal failed to comply with its obligation under s425 of the Migration Act 1958 (“the Act”).
a. According to the Tribunal’s letter in relation to the hearing on 26 May 2005, I was informed that the hearing was mainly for two purposes: firstly, I was given a chance to provide my oral evidences; and secondly, I was invited to comment the information or issues that the Tribunal would be used as reasons for making its decision.
b. However, during the hearing, the Tribunal never gave me a genuine opportunity to provide my oral evidences in support of my review application. I had to passively answer one question after another, and on many occasions, my replies were interrupted, cut, or turned to a wrong direction. Eventually, my thinking was completely thrown into chaos; and I even did not know what I had talked about during the hearing.
c. It is true that towards the end of the hearing, the Tribunal indeed asked me some questions about my knowledge of Falun Gong. However, owing to huge pressure given by the Tribunal, I was in a complete confused state of mind at that time, and it was definitely impossible for me to answer any questions properly.
d. Moreover, all of terms that used by the Tribunal were actually translated from Chinese to English. When the Tribunal questioned me, those terms were then translated from English to Chinese. The meaning was completely changed or distorted. As a result, it was definitely impossible for me to correctly and accurately understand those terms raised by the Tribunal.
e. As I have mentioned above, the second purpose for the hearing was that I could have a chance to present my argument against some issues raised from the Tribunal. However, the Tribunal actually did not give me any chances during the hearing, because the Tribunal never wanted me to know what actual issues were. Sometimes, the Tribunal did tell me a few of issues, but I could not present any arguments because I had already been in a complete confused state of mind due to huge pressure of the Tribunal.
2. The Tribunal failed to comply with its obligations under s424A(1) of the Act.
a. As a matter of fact, the Tribunal did not make its decision until 13 July 2005. In other words, during the period from 26 May 2005 to 13 July 2005, the Tribunal had sufficient time to give me a chance to comment those issues arising from the hearing on 26 May 2005. Unfortunately, the tribunal did nothing.
b. Moreover, the Tribunal failed to provide me any chance to common on the dependent country information.
3. The Tribunal made erroneous findings and a big mistaken conclusion in a way that affects the exercise of the Tribunal’s power, because it has-:
· Ignored important independent country information and important legal issue; and
· Incorrectly found major reasons why I claimed to have a well-founded fear of being persecuted on my return.
4. In conclusion, I never accept that the Tribunal has considered all of my claims fairly and carefully..
Submissions and Reasons
The applicant was a self-represented and appeared with the assistance of a Mandarin interpreter. He filed an amended application but did not prepare any written submissions. He declined to develop his claims with oral submissions. The amended application alleges an error of law constituting jurisdictional error, and a procedural error constituting an absence of natural justice. The supporting particulars are in effect a series of submissions. Ms Clegg’s written submissions attempted to deal with each individual issue by combining the relevant elements of the particulars. Particulars (a) and (b) of the first ground claim of a breach of s.425 of the Migration Act. The applicant claims he only had a brief opportunity at the hearing to give oral evidence and comment on issues that the Tribunal would use in making its decision. The first respondent submits that this claim is unsustainable because it complains bias on the part of the Tribunal.
The applicant was invited to attend the Tribunal hearing, give evidence and present arguments relating to issues raised in connection with the review. The invitation letter was in the normal form and there was no complaint about its content or form of service.(CB 61) The invitation, when considered with the contents of the Tribunal decision, indicates that s.425 of the Migration Act was complied with. The delegate’s decision cast serious doubts on the credibility of the applicant, and the delegate relied heavily on independent country information to conclude that the applicant was not a refugee.(CB 48) The applicant’s credibility was tested at the Tribunal hearing and found to be severely wanting. The first respondent submits that this would not have come as a surprise to the applicant, and the Tribunal conveyed this to the applicant on a number of occasions.(CB 73.7, 74.4, 75.5) It was open to the Tribunal to test the credibility of the applicant’s claims and ask the questions that it did. This was not a situation where the applicant was not given the opportunity to present the evidence “relating to the issues arising in relation to the decision under review”. In this way the decision can be contrasted with the facts in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ at [33]-[37] and [44].
I accept the written submissions of the first respondent that the Tribunal did not breach its obligations under s.425 of the Migration Act. In light of the very general nature of the claim and lack of specific particularisation on the alleged breach by the Tribunal, it is not apparent on the face of the Tribunal’s decision that a breach of this section of the Migration Act has occurred and this element of ground one cannot be sustained.
Particulars (b), (c) and (e) of ground one allege actual bias. The applicant alleges that he was led in the wrong direction, and put under pressure as the member did not want him to know what the actual issues were and did not consider his claims fairly and carefully. The first respondent submits that an allegation of bias is serious and should not be made without a proper basis. The allegation should also be fully particularised and made out. It is submitted that in this case there was nothing in the Tribunal’s reasons which suggested either actual or apprehended bias. It is submitted that the applicant could only establish that the Tribunal acted dishonestly, arbitrarily or capriciously by producing proper evidence: SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [56]-[59] per Tamberlin, Mansfield and Jacobson JJ.
I accept the submissions made on behalf of the first respondent that the applicant did not discharge the evidentiary burden he bears in connection with a claim of bias by the Tribunal. Tribunal hearings are conducted on an inquisitorial basis, which permits some prodding, probing and testing of an applicant by the Tribunal member. In the absence of a transcript of the Tribunal hearing, there is nothing in the decision record which would indicate that the Tribunal demonstrated apprehended bias. In the circumstances, these particulars of ground one cannot be sustained.
Particular (d) of the first ground alleges that the meanings of terms translated during the hearing were “completely changed or distorted”. As a result the applicant claims it was impossible to correctly and accurately understand the questions. It is submitted that while errors in interpretation or translation can lead to jurisdictional error if the Tribunal was aware of the difficulties, it is for the applicant to prove that any error in interpretation was so inadequate that material errors occurred: Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 at [26]-[39] per Goldberg J; SZEPJ v Minister for Immigration and Multicultural Affairs [2005] FMCA 1639.
I accept the first respondent’s submission that there is no evidentiary basis to suggest that any difficulties in interpretation or translation seriously affected the conduct of the Tribunal hearing. Again, in the absence of a transcript and without identifying a specific error which resulted in misunderstanding, a defect in interpretation or translation cannot be established. This ground cannot be sustained.
The second ground alleges a breach of s.424A of the Migration Act in that the Tribunal should have, in the time between the hearing and the handing down of its decision, contacted the applicant and given him a chance to comment on issues arising out of the hearing. The second issue of this claim is that the applicant was not given an opportunity to comment upon the independent country information. The first respondent’s written submissions contend that the Tribunal decision was based solely on the rejection of the applicant’s credit. This assessment turned entirely on information given to the Tribunal by the applicant at the hearing.(CB 75.5-77) The only material referred to by the Tribunal as information given to it by the applicant occurred during the hearing. This brings into operation the exception to s.424A(1) which is in s.424A(3)(b). In relation to the second element of the claim, the first respondent submits that it is evident that no independent country information formed part of the Tribunal’s reasons for affirming the decision under review. Therefore, it is unnecessary to consider whether there was information which fell within the exception in s.424A(3)(a).
I accept the first respondent’s submission that s.424A does not apply to the facts of this case and this ground of review cannot be sustained.
The third ground alleges that important independent country information and legal issues were ignored by the Tribunal. The first respondent submits that there was no independent country information before the Tribunal which it was required to take into account. Although the applicant referred in passing to independent country information in his submissions to the Tribunal, it was not necessary for the Tribunal to address this information.(CB 55.6) The first respondent submits this is because the Tribunal made its assessment separate to the country information and entirely upon the applicant’s credit. In other words, the country information provided by the applicant had no relevance to the way in which the Tribunal reasoned because the Tribunal did not get to the stage where it accepted the applicant’s basic factual claims. The first respondent also submits that the important legal issue to which the applicant refers in this ground is unclear. In the absence of a clear pleading with particularisation, it is not possible to identify the issue.
I accept the first respondent’s submission in respect of the third ground. The Tribunal decision was based upon completely different criteria, not based on independent country information. The vague claim that an important legal issue was ignored by the Tribunal has no basis and cannot be sustained. This ground for review should be dismissed.
The fourth ground is nothing more that a general statement that the applicant was dissatisfied with the outcome of the Tribunal decision. It does not identify any basis for a claim that the Tribunal did not fulfil its decision-making responsibilities. This is not a ground of review and should be ignored.
Conclusion
The applicant in these proceedings was a self-represented litigant. He was provided with the limited services of a Court-appointed panel adviser. He failed to appear at the scheduled final hearing and had the matter reinstated. It appears that he has relied on the assistance of an unidentified third party or agent in the preparation of documents for these proceedings. That party did not completely understand the Tribunal decision and applied general submissions commonly seen in this Court in appeals from the Refugee Review Tribunal. A consideration of the material in the Court Book, particularly the Tribunal decision, does not on its face indicate that the Tribunal decision is affected by jurisdictional error. 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-three (23) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 17 September 2007
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