SZHCD v Minister for Immigration
[2007] FMCA 658
•8 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHCD v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 658 |
| MIGRATION – Refugee – applicant disowned claims at Tribunal hearing – Tribunal considered claims – Tribunal open to make findings on evidence before it – No. s.424A error – independent information put before Tribunal – no comparison of inconsistencies – Tribunal gave opportunity to comment – no failure to assess the applicant’s claims – no failure to “properly discern” Migration Act – no error in failing to allow applicant to put claims in writing – Tribunal’s reasons sufficient to explain ultimate conclusion – application dismissed. |
| Migration Act 1958, s.424A, 424A (3)(b), s.424A(1) |
| SZHCC v Minister for Immigration & Citizenship [2007] FMCA 659 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 10 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 Al Shamry v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1679 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 Minister for Immigration & Multicultural & Indigenous Affairs v Jia [2001] HCA 17 Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 |
| Applicant: | SZHCD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2512 of 2005 |
| Judgment of: | Nicholls FM |
| Hearing date: | 1 May 2007 |
| Date of Last Submission: | 26 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mr. A. McInerney |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $2550.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2512 of 2005
| SZHCD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
I have before me an application filed on 8 September 2005 and amended on 15 November 2005, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 19 July 2005 and handed down on 9 August 2005, which affirmed the decision of the delegate of the respondent Minister to refuse the grant of a protection visa to the applicant. (This matter needs to be read with SZHCC v Minister for Immigration & Citizenship [2007] FMCA 659) concerning a similar application by the applicant’s wife who separately sought review by the Tribunal, resulting in a similar decision to that of her husband).
The applicant is a citizen of the People’s Republic of China, who arrived in Australia on 8 January 2005. On 17 February 2005 he lodged an application for a protection visa with the first respondent’s Department. On 15 March 2005, a delegate of the Minister refused to grant a protection visa. On 15 April 2005 the applicant applied for review of that decision.
The application for a protection visa is reproduced at Court Book “CB” 1 to CB 26, claims are advanced in a statement at CB 19. The application for review to the Tribunal is reproduced at CB 56 to CB 60, which includes a statement by the applicant at CB 60. In the application it was claimed that:
1) He became a Christian in 1984.
2) He did not have religious freedom in China.
3) In March 2004, as a result of his religious activities, he and his wife were arrested by the local police as they believed they were attending “illegal” religious activities.
4) He suffered severe mental and physical torture from the Chinese authorities.
5) They (he and his wife) could not leave China until they “paid bribe money” to “the concern people”.
The Tribunal’s “Findings and Reasons” are set out at CB 83.10 to CB 85. The Tribunal previously set out the applicant’s claims as described in his written application, and in particular in his application for review (at CB 82.2 to CB 82.10), but noted that at the hearing conducted on
18 July 2005, the applicant:
(1)Disowned the entirety of the claims advanced in his application for protection and in his application for review (CB 84.5).
(2)Stated that he had left his application for protection and application for review to a person in Australia, a “friend of a friend”, to handle these matters and had rewarded him for doing so with the payment of a carton of cigarettes (CB 84.6).
(3)Had not only not explained any of his personal details to this “friend of a friend”, but was completely unaware of the claims which had been advanced on his behalf as they were not read back to him (CB 84.7).
The Tribunal accepted the applicant’s evidence about the provenance of his written claims. But it found that no weight whatsoever could be placed on them (CB 84.6 to CB 84.7).
At the hearing, the Tribunal asked the applicant what he feared about returning to China. In response the applicant identified a concern over the welfare of his child who is studying in Australia and aged sixteen years, contrasted the nature of people in Australia and China (to the former’s advantage in areas such as courtesy and respect for others). He raised as a reason for not wishing to return to China a dispute which he had with a neighbour over the position of a boundary between their respective properties (CB 84.7 to CB 84.9).
The Tribunal accepted all these concerns may be genuinely held by the applicant, but was unable to identify in the information before it, any grounds for believing he would suffer serious harm for a Convention reason, if he were to return to China (CB 84.8 to CB 84.10). The Tribunal therefore was not satisfied that he was a refugee and affirmed the decision not to grant a protection visa (CB 84.10 to CB 85.2).
The applicant puts forward five grounds of review in his amended application:
“(1)The Tribunal did not refer to any independent information for the consideration of my application for a protection visa.”
“(2)I was very scared at the hearing, and the Tribunal did not consider my claims in writing. I was too scared to give oral evidence at the hearing invited. The Tribunal therefore had bias against me and refused to consider my application with correct procedure.”
“(3)The Tribunal failed to assess the chance of my persecution on my return to China.”
“(4)The Tribunal did not observe Migration Act 1958 properly in making the decision.”
“(5)The Tribunal had bias against me because my education is limited and I could not communicate with the officer very well.”
At the hearing before the Court, the applicant appeared in person with the assistance of an interpreter in the Mandarin language. Mr. A. McInerney appeared for the respondent. This matter was heard in conjunction with that of his wife, although both parties were dealt with individually and separately.
I note from the correspondence on the Court’s file that the applicant did access the Court’s Legal Advice Scheme, and consulted, and was given advice by a lawyer on that panel on 28 March 2006.
At the hearing before the Court, the applicant made submissions translated by the interpreter from a prepared written document. The applicant subsequently confirmed that the document had been written by a “friend” and he “had no idea” as to its actual content.
Nevertheless, the submission:
(1)Made an unexplained reference to s.91R of the Act.
(2)Claimed that the Tribunal did not refer to any independent country information.
(3)Claimed that this showed that the Tribunal was biased.
(4)Claimed the Tribunal did not understand the contents of the application.
(5)Claimed therefore, the application was “not considered” (according to) “normal procedures”.
(6)Claimed the Tribunal did not make its decision based on “written submissions”. It relied on what occurred at the hearing, where the applicant was nervous. He could not express himself “very well” at the hearing for this reason and because he had “very little education”.
(7)Claimed the Tribunal did not provide “sufficient” reasons to refuse the application.
To a large extent, the statements above reflect the complaints in the grounds as stated in the amended application.
Before dealing specifically with each of the grounds, I should note that on a plain reading of the Tribunal’s decision record, it found on what the applicant said at the hearing before it, that it accepted the applicant’s evidence that he “disowned” the claims advanced in his application for a protection visa and in his application for review. Therefore, it placed “no weight” on these claims. On what the applicant then said in relation to his fear of returning to China, the Tribunal was unable to identify any nexus to the matters relevantly required pursuant to the Refugees Convention, and was therefore not able to be satisfied that the applicant had a well founded fear of persecution for a Convention reason, and that he could be said to be a refugee.
I cannot discern jurisdictional error in what the Tribunal has done in this regard. On the material before it, these findings, for which it gave reasons, were open to the Tribunal.
The weight to be accorded to evidence or information provided by the applicant at a hearing is a matter for the Tribunal (NAHI v Minister for Immigration and Multicultural Affairs [2004] FCA 10 at [11]).
Nor can it be said that this is a case where the Tribunal compared inconsistencies in information provided in the protection visa application with what was subsequently said at the hearing such that (with reference to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, Al Shamry v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1679, and the illumination provided in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2), it could be said the Tribunal failed to meet its statutory obligation set out in s.424A of the Migration Act (“the Act”). The Tribunal’s decision turned wholly on what the applicant himself said at the hearing before it, such that any such information, being the information on which the Tribunal relied, in whole, for its decision, fell within the exception contained in s.424A(3)(b) of the Act from the requirements in s.424A(1) of the Act. The Tribunal accepted what the applicant said at the hearing as to the provenance of his written applications. It then proceeded to make its decision on what the applicant himself put to it. The information (relevant to the “s.424A issue”) in the protection visa application was therefore not a part of the reasons for its decision.
The applicant claims in his amended application that the Tribunal did not refer to any independent information. There is nothing before the Court now to show that the applicant put any such information before the Tribunal, or asked the Tribunal to make enquiries, or even referred the Tribunal to any such information. Ultimately, and simply, having found the applicant’s claims had no Convention nexus, the Tribunal was not required to proceed further and refer to any country information.
The applicant claims that he was “too scared” at the hearing to give evidence. Before the Court, the applicant’s assertion was that he was nervous and could not express himself “very well” at the Tribunal hearing. The applicant’s complaint, in context, therefore, can be seen to be that he was denied the opportunity of a hearing before the Tribunal as contemplated by s.425 of the Act (see also the reference to “bias” below).
The applicant has put no evidence before the Court about what he says occurred at the hearing. The Court can only proceed on the evidence before it (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241).
The Tribunal’s unchallenged account of what occurred at the hearing (reproduced at CB 83.1 to CB 83.9 and CB 84.5 to CB 84.10) reveals that the Tribunal asked the applicant relevant questions, and particularly, that he was given the opportunity to explain what he feared about returning to China. The applicant had the assistance of an interpreter in the Mandarin language (CB 72.6 and CB 82.3). The Tribunal’s (unchallenged) account shows that he did give evidence (CB 83) and was given the opportunity to comment. I cannot see on what is before the Court now that the applicant was denied the opportunity of a hearing (the opportunity was not a “hollow shell”) as required by s.425 of the Act. There is no evidence to support the mere claim that his “nervousness” affected his capacity to communicate with the presiding member. Nor for that matter the complaint about the adequacy or level of interpretation provided by the interpreter at the Tribunal hearing.
The applicant further claims that the Tribunal was biased. This is said to be because he was too scared to give evidence and that the Tribunal was “against him” because his education was limited. To the extent that this allegation relies on what the applicant now says occurred at the hearing, again no evidence has been put before the Court to challenge the Tribunal’s account of what occurred.
With reference to relevant authority as to the relevant test (Minister for Immigration & Multicultural & Indigenous Affairs v Jia [2001] HCA 17, Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872, NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328). I cannot see on what is before me that the presiding Tribunal member had a state of mind so committed to a conclusion already formed as to be incapable of being persuaded differently.
Nor for that matter can it be said that there is evidence before the Court to support a proposition that a fair minded lay observer might reasonably apprehend that the presiding Tribunal member did not bring an impartial mind to the proceeding: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28.
The applicant’s complaint that the bias of the Tribunal member can be shown “because my education is limited” is without substance. While the applicant had given evidence to the Tribunal that he “only had one or two years of education and could not even write his name well in Chinese”, there is nothing in the material before me to suggest that this caused the Tribunal to close its mind to what the applicant was saying.
I cannot see that the Tribunal failed in the exercise of its jurisdictional duty to properly assess the applicant’s claims, such as they were ultimately put to it. Nor can I discern any failure to “properly observe” the Act. (The other matters referred to in the amended application).
The applicant’s reference to s.91R of the Act before the Court was unexplained. In any event, I cannot see that the matters contained in that section had reference to the Tribunal’s decision. This is not a matter that required the Tribunal to consider the issue of “persecution” in the context of what constituted the “essential and significant reason” for the persecution. Nor did the Tribunal’s decision involve consideration of the applicant’s conduct in Australia.
The applicant was unable to assist the Court by what was meant by his statement that the Tribunal did not make its decision based on written submissions. No “written submissions” were made to the Tribunal.
If what is meant is that the Tribunal did not give the applicant the opportunity to make submissions in writing, as opposed to proceeding on what was said at the hearing, then there is nothing before the Court to show that the applicant sought such an opportunity. The Tribunal’s record of what occurred at the hearing indicates that the Tribunal gave the applicant the opportunity to make any comments he wished at the conclusion of the hearing. This was repeated after the Tribunal specifically put the applicant on notice that it had “some doubt” as to whether there was a fear of persecution for a Convention reason. If the applicant felt that he had been unable to communicate his claims to the Tribunal at the hearing, then there is nothing to show he sought any alternative, or further opportunity. Nor on what is before the Court can it be said that there was any obligation on the Tribunal to have provided such an opportunity.
This is not a case where the Tribunal had doubts about the applicant’s credibility. In fact, the Tribunal accepted what the applicant said. I cannot see that the applicant’s level of education, nor on what is before me, any other factor, would have prevented the applicant from putting to the Tribunal what his fears were. What he did put caused the Tribunal to find that there was no Convention nexus. This was plainly open to the Tribunal. With reference to what was said at the hearing before the Court, the Tribunal’s reasons were “sufficient” to explain its ultimate conclusion. I cannot see that the allegation that the Tribunal did not understand the contents of the application can be made out. The Tribunal dealt with what the applicant ultimately put to it.
I cannot discern jurisdictional error in the Tribunal’s decision. The application is dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Dawnie Lam
Date: 8 May 2007