SZHCJ v Minister for Immigration & Anor

Case •

[2006] FMCA 1703

•

1 November 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHCJ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1703
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of the People's Republic of China – independent consideration of whether there was any breach of Migration Act 1958 (Cth) s.424A – no reviewable error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424, 424A
SZEEU vMinister for Immigration & Multicultural and Indigenous Affairs [2006] FCAFC 2
ReMinister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
Applicant: SZHCJ
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 1860 of 2006
Judgment of: Scarlett FM
Hearing date: 1 November 2006
Date of last submission: 1 November 2006
Delivered at: Sydney
Delivered on: 1 November 2006

REPRESENTATION

Applicant: In Person
Solicitor for the Respondent: Ms Johnson
Solicitors for the Respondent: Sparke Helmore

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent's costs fixed in the sum of $2,800.00.

  3. I allow four (4) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1860 of 2006

SZHCJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refuge Review Tribunal. The decision was signed on 7th June and handed down on 8th June 2006.  The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a protection visa.  The Applicant now seeks orders declaring that decision null and void and setting it aside.

Background

  1. The Applicant is a citizen of The People's Republic of China who arrived in Australia on 25th October 2001.  On 23rd November in that year, the Applicant applied for a Protection (Class XA) visa claiming a fear of persecution on the basis of political opinion or imputed political opinion.

  2. A delegate of the Minister refused that application on 3rd January 2002.  On 6th February that year, the Applicant applied to the Refuge Review Tribunal for a review of that decision.  The Tribunal wrote to the Applicant and invited him to attend a hearing on 2nd April 2003.  


    The Applicant did not attend the hearing and the Tribunal affirmed the decision of the delegate. 

The Refugee Review Tribunal’s hearing

  1. The Applicant applied for a review of that decision on 12th September 2005. Consent orders were made in the Federal Magistrates Court on 21st February 2006 setting that decision aside and remitting it to the Tribunal for reconsideration. 

  2. The Tribunal wrote to the Applicant and invited him to attend a hearing scheduled for 6th April 2006.  The Applicant did attend that hearing.  He provided a letter in English setting out the claims upon which he relied.  A copy of that letter can be found at pages 40 to 43 of the Court Book. 

  3. The Applicant attended the hearing on 6th April 2006 where he gave oral evidence with the assistance of an interpreter.  He set out his history and the Tribunal asked him a number of questions about what had happened since he had arrived in Australia.  The Tribunal also asked the Applicant about his background in China including his family; his employment; the discoveries that he made that some people in power were acting corruptly; and about his protests and his detention.

  4. The Tribunal asked the Applicant about his claim that he had arrived in Australia under a false name, and the Applicant explained that he had a friend who had arranged everything. 

  5. The Tribunal wrote to the Applicant after the hearing.  In a letter dated 11th April 2006, the Tribunal told the Applicant that it had information that would, subject to any comments that he made, be the reason or part of the reason for deciding that he was not entitled to a protection visa.  The letter set out in some detail a considerable amount of information about the Applicant and about matters that the Applicant told the Department and had told the Tribunal. 

  6. At various times during the letter the Applicant was advised that the information being sought by the Tribunal was relevant to his application as it may indicate that certain findings could be made adverse to his claim.  The Tribunal described that information as information that would, subject to any comments that he made, be the reason or part of the reason for deciding that he was not entitled to a visa, and invited the Applicant to comment on all of that information in writing in English by 8th May 2006.

  7. On 8th May the Applicant asked for an extension of time in order to respond to that letter, because he had extra information that he wanted to supply.  The Tribunal decided not to extend the time and wrote to the Applicant on 9th May advising him that it did not consent to an extension of the time period.  The Tribunal then wrote to the Applicant on 22nd May saying that it had made its decision and would hand that decision down on 8th June.

  8. On 1st June, however, the Tribunal received a letter from the Applicant dated 2nd May 2006 commenting on the information that had been put to him.  The letter was accompanied by photocopies of a marriage certificate and a household register, both of which had been translated into English.  The Tribunal Member then recalled the decision record and proceeded to consider the material that the Applicant had submitted.  A copy of that material appears in the Tribunal's decision record at pages 82 through to 84 of the Court Book. 

  9. The Tribunal handed down its decision on 8th June, but it was a new decision because it had been amended to take account of the material that the Applicant had submitted.  The Tribunal's decision is quite lengthy and a copy of it can be found on pages 67 through to 95 of the Court Book.

The Tribunal’s findings and reasons

  1. The Tribunal's findings and reasons are set out on pages 85 through to 95.  The Tribunal accepted that the Applicant was a national of The People's Republic of China and assessed his claims against The People's Republic of China.  The Tribunal noted that the Applicant provided two different stories as to why he left China, and set out what they were.  The Tribunal noted at page 86 of the Court Book that the Tribunal did not find the Applicant to be a convincing or truthful witness for a number of reasons.  The Tribunal at page 86 had this to say:

    The Tribunal found it extremely difficult to obtain evidence from the applicant at the hearing as to what happened when he visited the Migration Company.  Moreover the evidence the applicant gave was evasive, confusing, internally inconsistent and inconsistent with the information and the letters he has submitted to the Tribunal.

  2. The Tribunal detailed what it considered to be the inconsistencies in the Applicant's evidence at pages 86 and 87 of the Court Book.


    The Tribunal went on to find at page 87:

    The Tribunal is of the view that the inconsistencies in the applicant's story as to what happened when he visited the Migration Company indicates that he is not a witness of truth and that he has not provided a truthful account  to the Tribunal of what happened when he visited the Migration Company.

  3. The Tribunal then goes on to set out other problems in the Applicant's evidence at the hearing. They are set out on pages 87 through to 92 of the Court Book.  At page 93 the Tribunal sets out details of inconsistencies in the information that the Applicant had provided, and referred in particular to an entry in the household register and to the Applicant's marriage certificate.  The Tribunal went on to make this finding about these documents at page 93:

    Given that the applicant specifically stated at hearing that he did not have any documentation to support his claim that he had changed surnames and given the above problems with the documentation the Tribunal finds that these documents are not genuine.

  4. At page 94 the Tribunal expresses other doubts.  The Tribunal said:

    Taking into account all of the evidence the Tribunal does not accept that the applicant was of any interest to the PSB when he left China. 

    The Tribunal went on to find that the Applicant had fabricated a number of his claims in order to support his claim for refugee status. 

  5. The Tribunal was not able to be satisfied that the Applicant had a well founded fear of persecution for his imputed political opinion or for any other Convention reason.

The application for judicial review

  1. The Applicant has applied to this Court for a review of that decision.  In his application filed on 4th July 2006, he sets out three grounds for relief:

    (1)I am a citizen of China.  If I go back to China I will be at risk of suffering persecution within the meaning of the 1951 Convention relating to the status of refugees and the 1967 protocol relating to the status of refugees.

    (2)Member of the RRT failed to understand my claims and failed to consider relevant matters.  Further particulars to be provided.

    (3)The respondent refused to grant my protection visa without any proper grounds and investigation.

  2. The Applicant has not filed an amended application, nor has he filed any written outline of submissions.  He has not provided any document containing further particulars of his claims.  He has attended the hearing and made oral submissions.  He told the Court that he did not agree with the Tribunal's decision because he believed that the Tribunal had bias against him. He said that the Tribunal was biased because the Tribunal did not believe his claims, which he says are true.  He said that in China he had spoken up and made many people angry by complaining about corruption. 

  3. I heard oral submission from the solicitor for the Respondent, Ms Johnson and when given the opportunity to reply, the Applicant told the Court that the Tribunal had observed the procedures, but used that as an excuse to reject his application. He was not able to inform the Court why he believed that the Tribunal would act against him in that way.

  4. Turning to the three grounds in the Applicant's application; the first ground set out does not refer to any jurisdictional error.  It is a restatement of his claim to be a refugee.  The second ground provides no particulars of how the Tribunal failed to understand the Applicant's claims and what relevant matters the Tribunal failed to consider. 


    The third ground does not provide any particulars of the claim that the Tribunal refused the Applicant's claims without proper grounds and proper investigation.

  5. As the first ground mentioned does not contain any reference to a jurisdictional error, there is nothing more that needs to be said about it. 

  6. As to the second ground, it is difficult to see how the Tribunal failed to understand the Applicant's claims or failed to consider any relevant matters.  The Applicant, as I said, has provided no further and better particulars and, on my reading of the Tribunal decision, the Tribunal sets out the Applicant's claims and evidence including directly quoting from the Applicant in considerable detail on pages 71 through to 84 of the Court Book.  There is also a reference to some country information.  I am not satisfied that there is any evidence the Tribunal failed to understand the task that was before it or failed to consider any relevant material and this ground of review therefore fails. 

  7. As to the claim that the Tribunal refused an application for a visa without proper grounds or proper investigation, it should be made clear that the Tribunal does not need to have positive grounds or positive evidence to refuse an application. The reverse is true. It is up to the Applicant to provide sufficient evidence to the Tribunal to enable the Tribunal to be satisfied that the Applicant meets the criteria for a visa, whatever that visa may be. That is made quite clear in s.65 of the Migration Act.

  8. The criterion to be met in respect of the ground of a protection visa is that set out in sub-s.36(2) of the Migration Act. That section requires the Tribunal to be satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Unless the Tribunal is affirmatively satisfied that the Applicant meets that criterion, then the Tribunal must refuse the application. In other words, the Tribunal must affirm the decision of the delegate to refuse the applications.

  9. In written submissions on behalf of the First Respondent Minister, Ms Johnson has noted that the Applicant is not legally represented and has independently considered whether any breach of s.424A(1) of the Migration Act can be said to arise. She refers to the decision of the Full Court of the Federal Court in SZEEU vMinister for Immigration & Multicultural and Indigenous Affairs [2006] FCAFC 2.

  10. Her submission is that as the Applicant was given an opportunity to comment on the information upon which the Tribunal relied, there is no breach of s.424A. In my view that submission is correct. One of the reasons for affirming the delegate's decision was the credibility, or lack thereof, of the Applicant's evidence. That is not, of course, a matter that comes under the purview of s.24A of the Migration Act. Credibility findings are matters of fact for the Tribunal see ReMinister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]. The findings of fact were open to the Tribunal on the evidence before it, so no error appears. I am referred to the decision of Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 558 - 559

  11. In order to avoid any doubt as to whether inconsistencies in evidence constitute information for the purpose of s.424A, the Tribunal set out, in the Tribunal's letter of 11th April, details of information including details of any inconsistencies. The letter is, to my mind, a comprehensive letter and goes to some trouble to set out matters in the Applicant's case which caused the Tribunal concern. I am satisfied that the letter complies with the provisions of s.424A of the Migration Act and I am not satisfied that any breach of s.424A has been made out.

  12. It is difficult to see that there is any other suggestion of an error.  


    The Applicant was invited to attend the hearing. He attended that hearing and gave oral evidence. The Tribunal wrote to him after the hearing raising matters for his consideration and comment under the provisions of s.424A. He sought an extension of time, which the Tribunal refused.

  13. After informing the Applicant that the extension of time was refused, the Tribunal received a letter from the Applicant containing his comments.  It is clear from the Court Book that the Tribunal did, in fact, recall its decision and amended its decision and handed that amended decision down, having taken into account the matters raised by the Applicant. Even though his submission was out of time, the Tribunal still considered it. 

  14. As to the evidence of bias, there is none.  It has been made clear in many decisions that an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker and is not to be lightly made and must be clearly alleged and proved. 


    The circumstances in which the Court will find an administrative decision maker has not acted in good faith are rare and extreme and this is especially so where all that the applicant relies upon is the written reasons for the decision under review.  I refer to SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [43] and [44].

  15. The fact that a Tribunal does not believe the Applicant's evidence is not of itself evidence of bias on the part of the Tribunal.  The argument that the Tribunal did not find in favour of the Applicant therefore the Tribunal was biased, is an argument that is doomed to failure in this Court.  There must be evidence of bias other than the evidence of a decision that does not meet the Applicant's approval.  There is no such evidence. 

  16. Whilst the Minister's solicitor has, very responsibly, considered the situation of an unrepresented applicant, I too have made my own independent consideration. I see no evidence of any other jurisdictional error that has not been referred to by the Applicant.  In my view, there is not one. 

  17. As there is no jurisdictional error, the decision is a privative clause decision as defined by s.474(2) of the Migration Act and is therefore final and conclusive and is not subject to orders in the nature of sociare or mandamus or prohibition or injunction or a declaration in any Court. It follows that the application will be dismissed.

  18. There is an application for costs on behalf of the First Respondent Minister.  The Applicant has been wholly unsuccessful in his claim and in my view the successful party should be entitled to a costs order, being legally represented.

  19. The Applicant has told the Court that he does not have the money to pay.  I have no reason to doubt that.  But inability to pay is not a reason of itself not to make an order for costs in favour of the successful party.  It may well, however, be a reason for considering time to pay.  In my view, the amount of $2,800.00 which is sought is an appropriate figure and I propose to make an order for costs in favour of the First Respondent in that sum.  I will, however, allow four months to pay.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  21 November 2006

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Cases Citing This Decision

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SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205