SZHIB v Minister for Immigration

Case •

[2006] FMCA 137

•

20 January 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHIB v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 137
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 a citizen of China claiming well founded fear of persecution for reason of political opinion – credibility.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 425, 474
M55 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131
Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamri (2001) 110 FCR 27
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 followed
SZDNJ v Minister for Immigration [2005] FCA 1034
SZECF v Minister for Immigration & multicultural & Indigenous Affairs [2004] FMCA 1033
SZEKY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 677
SZERV v Minister for Immigration & Multicultural & Indigenous Affairs[2005} FMCA 782
SZFEG vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1405
VUAV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1271
WAGP of 2002 vMinister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276
Applicant: SZHIB
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 2922 of 2005
Judgment of: Scarlett FM
Hearing date: 20 January 2006
Date of Last Submission: 20 January 2006
Delivered at: Sydney
Delivered on: 20 January 2006

REPRESENTATION

The Applicant: Appeared in person
Counsel for the Respondent: Ms McNaughton
Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

  1. The application is dismissed.

  2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2922 of 2005

SZHIB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal.  The decision was made on 23rd August 2005 after a hearing which took place that same day.  The Tribunal handed down its decision on 13th September 2005.  The applicant is a citizen of China who arrived in Australia on 25th November 2004.  He applied for a protection (Class XA) visa on 23rd December 2004 claiming a fear of persecution for reason of political opinion.  The delegate of the Minister refused his application on 18th March 2005, so on 21st April he applied for a review by the Refugee Review Tribunal. 

  2. The applicant attended a hearing of the Tribunal on 23rd August 2005 to give oral evidence.  The Tribunal did not grant the application.  In the Tribunal's findings and reasons which are found on pages 74 through to 78 of the Court book, the Tribunal set out why it was not satisfied with the applicant's evidence.  It is clear that the primary reason related to the applicant's credibility.  At page 75 of the Court book the Tribunal set out what may be a summary of the Tribunal's reasons for not accepting the applicant's case, and I quote:

    The Tribunal is not satisfied with the applicant's credibility. 


    A number of significant inconsistencies arose in the course of the Tribunal hearing.  And given these inconsistencies, the Tribunal cannot be satisfied that the applicant has been truthful in his claims and evidence, and cannot be satisfied that he has any claim to have a well founded fear of persecution for a Convention reason.

  3. The particular areas where the Tribunal was not satisfied with the credibility of the applicant's evidence included that relating to his employment at page 75, that relating to his claimed membership of the Farmers, Peasants Self-Assistance Association at pages 75 and 76, and the applicant's own personal activities.  At page 76, the Tribunal said:

    When asked about his own personal activities, the applicant gave a contradictory and inconsistent account to the Tribunal. 


    For example, the applicant initially gave evidence that although the association had a demonstration outside the local government offices, he did not attend.  He then gave a different account, saying that he took a day off work.

  4. When challenged by the Tribunal, the Tribunal noted this:

    The applicant immediately altered his evidence, stating instead that he led the demonstration and he started the shouting and the others followed. 

  5. The Tribunal stated at page 77 of the Court book that at the conclusion of the hearing the Tribunal member had pointed out to the applicant that there were numerous contradictions, inconsistencies and implausibilities in his evidence and that it had concerns about his truthfulness.  The Tribunal says:

    The applicant was given the opportunity to clarify the contradictions regarding the various claims that he made and his response was to the effect that he was telling the truth.

  6. In short, the Tribunal was not satisfied that the applicant had a well founded fear of persecution and affirmed the decision of the delegate not to grant a protection visa. 

  7. The applicant sought judicial review under the provisions of s.39B of the Judiciary Act 1903 (Cth). In an amended application filed on


    22nd December 2005, he seeks relief including an order that the matter be remitted to a differently constituted Refugee Review Tribunal to be determined in accordance with the law.  He sets out two grounds. 


    First, that there was an error of law in the Tribunal's decision constituting a jurisdictional error, and second, that there was procedural error in the Tribunal's decision constituting an absence of natural justice. 

  8. Turning to the applicant's claim, which appears to be a claim for breach of s.425 of the Migration Act 1958 (Cth), the applicant said that before he attended the Tribunal he was advised that the main purpose for the Tribunal's hearing was to allow him to give oral evidence in support of his claims and to present his arguments relating to the issues arising in relation to the decision under review. The applicant drew the Court's attention to the letter of invitation forwarded to him by the Tribunal dated 11th July 2005.  That is the usual letter informing the applicant that the Tribunal has considered the material before it in relation to his application but is unable to make a decision in his favour on the basis of that information alone and thereby inviting him to attend a hearing at a specified time to give oral evidence and present arguments in support of his claims. 

  9. What the applicant says happened is that he was not given the opportunity either to make an oral submission setting out his entire case in full, but was constantly interrupted.  He says that from beginning to end, he still waited for a chance to give his oral evidence completely.  Eventually, he said, he was completely confused and completely lost.  He also said that the Tribunal should have put to him the reasons why it was not satisfied with his evidence and give him the opportunity to answer those concerns. 

  10. The provisions of sub-s. 1 of s.425 required the Tribunal to invite the applicant to appear before the Tribunal, quote:

    To give evidence and present arguments relating to the issues arising in relation to the decision under review.

  11. There is no obligation on the Tribunal under s.425 for the Tribunal to set out the Tribunal's thought processes or to indicate to an applicant why the Tribunal is not satisfied with his oral evidence and give him the opportunity to correct or improve that evidence. As to whether the applicant was not permitted by the questioning of the Tribunal to give his evidence in full, there is no supporting evidence by way of a transcript of the evidence. I note that the Tribunal member does set out at page 77 that the applicant was given the opportunity to clarify the contradictions regarding the various claims that he made, and his response was to the effect that he was telling the truth. The applicant says that he was completely confused and lost at this stage and was not able to reply to that.

  12. It is not, in my view, incumbent upon the Tribunal under s.425 or


    s.424A for a Tribunal member at the conclusion of the applicant's evidence to set out the inconsistencies of the applicant's evidence to the Tribunal. The fact that the Tribunal member did do this indicates that the Tribunal went beyond the strict requirements of the law, because it is clear that the Tribunal had formed an adverse view of the applicant's credibility. It does appear from my reading of the applicant's amended application and from his submissions today that whilst he claims that the Tribunal made obvious legal errors, his understanding of s.425 of the Act which he says was given to him by his migration adviser, is inaccurate.

  13. The applicant also claims that there was a breach of s.424A of the Migration Act in the way that the Tribunal dealt with his case. It is clear that the applicant's understanding of the provisions of s.424A of the Act is just not correct. Counsel for the respondent Minister sets out that inconsistencies that arise within the Tribunal hearing itself do not raise any problem in respect of the decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24, nor do they raise any problems in respect of Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamri (2001) 110 FCR 27.

  14. The inconsistencies, even if they do constitute information, and in my view they do not, if they arise from within the applicant's evidence, fall squarely within the exception contained in s.424A(3)(b) of the Act. And it is quite clear that the Tribunal based its decision to a very large extent on the fact that within the applicant's evidence to the Tribunal on that day, there were internal inconsistencies. And it was on that basis that the Tribunal formed the decision and the opinion as to the applicant's not only lack of credibility, but formed a positive view of the applicant's mendacity, meaning untruthfulness.

  15. The question of credibility of an applicant is entirely a matter for the decision maker.  The decision maker is there on the spot, hears the applicant's evidence.  That is set out in a number of cases including the well known decision of  Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Durairajasingham (2000) 168 ALR 407 and the judgment of McHugh J, I think, at paragraph 67.

  16. Counsel for the respondent argues, and in my view correctly, that if any material in the applicant's protection visa was relied on by the Tribunal as the basis for any finding of discrepancy, that that material was in fact republished by the letter accompanying the Tribunal application at pages 51 to 54 of the Court book. Republication by an applicant brings material concerned into the area of information given by the applicant and is therefore covered under the exception in s.424A(3)(b).


    See M55 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131, and in particular, VUAV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1271, and also SZDNJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1034.

  17. The respondent submits, and indeed it is now trite law, that inconsistencies of themselves do not constitute information for the purpose of s.424A. There are numerous authorities to this effect, including WAGP of 2002 vMinister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276 at [33], and a number of decisions on appeal from the Federal Magistrates Court – all in Sydney, I note, including SZEKY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 677, SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 1033, SZERV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 782, and SZFEG vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1405 at [30], being a very helpful judgment by Jacobson J.

  18. The fact is that the applicant gave evidence to the Tribunal and the Tribunal was just not satisfied with his credibility. The inconsistencies referred to, which are not s.424A matters, arose from the evidence that the Tribunal had heard from the applicant that day. There was no requirement for the Tribunal to put to the applicant words such as "You have said this, but then you have said that. This is inconsistent, what do you have to say about that?". There is no requirement that the Tribunal has to confront the applicant with inconsistencies within his own evidence given to the Tribunal hearing. The Tribunal does not have to disclose its own thought processes, and the Tribunal does not have to put inconsistencies in the applicant's own evidence back to the applicant for comment.

  19. The Tribunal did not believe the applicant's evidence and as such, the applicant failed before the Tribunal. The applicant has not made out any jurisdictional error in my reading of the decision, noting that the applicant is not legally represented; I cannot discern any other jurisdictional error that the applicant may have missed. I am satisfied that there is no jurisdictional error. The decision of the Tribunal is therefore a privative clause decision as defined by s.474 of the Migration Act and it attracts the protection of that section.


    The application will be dismissed.

  20. This is an appropriate matter for costs.  It is the normal situation in these matters that a successful party can ask the Court and expect to receive from the Court, an order that the unsuccessful party be responsible for their legal costs. 

  21. I propose to make an order for costs in the sum of $4,200.00, which includes counsel's fees, appears to me to be well within the scale envisaged by sch. 1 of the Federal Magistrates Court Rules 2001. 


    This is an appropriate matter in which counsel should have been briefed and if necessary, I certify for counsel.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  27 January 2006

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Cases Citing This Decision

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SZHIB v Minister for Immigration [2006] FCA 611