SZHMI v Minister for Immigration
[2007] FMCA 520
•11 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHMI v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 520 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision –status – refugee status – refusal – visa – protection visa – duty to give reasons – no obligation on Tribunal to disclose its thought processes. |
| Migration Act 1958, ss.36, 65, 91X, 424A, 425, 430 |
| SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 |
| Applicant: | SZHMI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3572 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 11 April 2007 |
| Date of Last Submission: | 11 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 11 April 2007 |
REPRESENTATION
The applicant appeared in person.
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
The applicant pay the first respondent's costs fixed in the amount of $4,200.
In the court record, the name of the first respondent be amended to read “Minister for Immigration & Citizenship”.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3572 of 2006
| SZHMI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application dated 5 March 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) signed on 24 October 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 10 May 2005 refusing the applicant’s application for a protection visa.
The decision the subject of these proceedings is the second decision of the Tribunal in respect of the applicant’s application for a protection visa. The first decision was set aside by order of this Court dated
1 June 2006 (Court Book (“CB”) page 69).
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant as follows:
… the applicant is a thirty one year old Chinese national. He says that he was born in Guangzhou and he speaks, reads and writes Mandarin and Cantonese. The applicant states that he completed twelve years of formal education in 1992. He worked as a trainee engineer from 1992 until 1995 and subsequently worked with two different companies as an engineer from 1996 until 2002. According to the information provided by the applicant he lived at the same address in … Guangzhou from 1995 until 2005.
(CB 89).The applicant claims to have been persecuted and to fear future persecution in China because of his political opinion or imputed political opinion as a result of his involvement with the union movement.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 10 of the Tribunal’s decision (CB 89 - 95). Relevantly, they are in summary:
a)the applicant became involved in union activities after many employees were dismissed from his workplace at the Guangzhou Dongshan Electronic Equipment Pty Ltd in 1999;
b)he became the secretary of the Independent Union as soon as he joined the union in May 1999 which organised demonstrations and protests that were reported in the media in 2002;
c)the applicant was warned by the Guangzhou police that if he continued to organise peaceful demonstrations and protests he would be detained;
d)one of the union members was “lured by police” and became an informant;
e)
according to the applicant’s evidence at the Tribunal hearing,
a demonstration had been planned to take place in January 2003 in front of the Municipal Government Office but this was reported to the authorities and did not go ahead because the applicant was detained by the police;
f)in the applicant’s statement attached to his protection visa application form, he stated that he was detained at his workplace on 22 December 2002 and sent to a detention camp. However, in his oral evidence before the Tribunal, the applicant said he was taken from his workplace on 12 December 2002;
g)the applicant was interrogated about his union membership and deprived of sleep;
h)he was sentenced to six months in a Labour Reform camp;
i)before his scheduled release on 26 June 2003 the applicant was informed that he would not be released due to his poor performance while at the camp;
j)the applicant’s parents found a means of bribing a corrupt officer in the labour camp and they paid RMB12,000 to secure his release on 8 July 2003;
k)upon his release the applicant found that he had lost his job, superannuation, medical insurance, driving licence, trade licence and telephone and internet services;
l)the applicant was required to report to the police every three days and forbidden to leave Guangzhou;
m)in his statement attached to his protection visa application form the applicant said that local businesses had been warned not to employ him and he “lost all chances to survive”. However, in his oral evidence at the Tribunal hearing, the applicant said that because he was an electrician he was able to secure work with private companies and private individuals although it was not regular work;
n)the applicant spent all his savings to get a lawful passport as his previous passport had been suspended after his arrest;
o)the applicant fears returning to China because he left without reporting to the police as he was required to do.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal concluded the applicant lacked credibility and that his material claims could not be accepted. Its decision was based on the following findings and reasons:
a)the Tribunal found the applicant’s claim to have been the secretary of the union organisation as soon as he joined the union movement to be implausible;
b)the Tribunal did not accept that the organisation would have persisted with demonstrations from 1999 to 2003 given the lack of result or gains;
c)the organisation held demonstrations in 1999, 2000 and 2002 without adverse outcomes. As such, it was implausible that arrests would have been made in 2002 on the basis of a demonstration that was due to take place in January 2003;
d)the Tribunal did not accept that the applicant would have been issued with a new passport and permitted to leave China without incident if, as he alleged, his original passport had been confiscated and cancelled to prevent him from going overseas;
e)the Tribunal did not accept the applicant’s claims that the activities of the workers group were reported in the local media in 2002 and that the report was put on the internet and spread widely, noting that the applicant was unable to articulate what the local media reports said, nor was he able to say where these reports were available online;
f)the applicant remained in China after his release from detention in July 2003 until he made a decision to leave the country in January 2005. Noting that in his evidence the applicant did not describe or refer to any incidents after his release, the Tribunal did not accept that the applicant would have waited some eighteen months to decide to leave China if indeed he was suffering harm; and
g)the applicant had no documentation relating to his arrest, charges laid, sentence imposed or conditions attached to his release in July 2003.
In essence the Tribunal formed the view that the applicant lacked credibility and it did not accept the applicant’s material claims. It found that:
… the applicant was not the secretary of a work based union in his workplace as he has claimed. It does not accept that in that capacity he organised demonstrations in 1999, 2000 and 2002 and it does not accept that he was detained as he was planning a demonstration to take place in front of the municipal government offices [in] January 2003 as he has claimed. It therefore does not accept that he was held from December 2002 until July 2003 and furthermore it does not accept that he was subject to reporting conditions to report to the local police every three days. It follows from this that the Tribunal finds that the applicant is not adversely regarded by the authorities in China for reason of political opinion or one imputed to him as a result of activities associated with a workplace union. (CB 98).
Proceedings in this Court
The grounds of the amended application are pleaded as follows:
1. The Tribunal did not provided [sic] enough information to me that they made the decision.
2. I will arrange time to see legal advicer [sic] before the hearing.
3. I’m fear to go back China. No job. No family and I’ll be in jail again.
At the hearing today the applicant raised further grounds, namely:
a)The Tribunal has no evidence to say that I was not a refugee.
b)I was entertaining giving more information to the Tribunal but I was not given time to do that.
c)I tried to contact the free legal adviser provided by the Court without success.
d)I'm not able to go back to China. I would be in danger. My livelihood would be in danger. I would have difficulty in finding work.
Only the first of the grounds pleaded in the amended application is arguably a ground of review. Although it has not been particularized, it could be divided into three separate allegations, namely:
a)in breach of s.430 of the Act, the Tribunal has given inadequate reasons for its decision;
b)in breach of s.424A of the Act, the Tribunal failed to provide the applicant with information that was the reason or part of the reason for affirming the delegate’s decision; and
c)in breach of s.425 of the Act, the Tribunal failed to advise the applicant of issues arising in relation to the decision under review.
Dealing with each of these in turn:
Breach of Section.430
Section 430 of the Act requires that the Tribunal’s decision be in writing and:
a)set out the Tribunal’s decision on the review;
b)set out its reasons for the decision;
c)set out the findings on any material questions of fact; and
d)refer to the evidence or other material on which the findings of fact were based.
In this case, the decision of the Tribunal is divided into six sections, namely, Application for Review, Relevant Law, Claims and Evidence, Findings and Reasons, Conclusions and Decision.
A consideration of the Tribunal’s decision demonstrates that it satisfies the requirements of s.430 of the Act. The “Decision” section sets out the Tribunal's decision. The “Findings and Reasons” and “Conclusion” sections set out the Tribunal's reasons for its decision. The “Findings and Reasons” section sets out its findings on material questions of fact and the “Claims and Evidence” section sets out the evidence or other material on which the findings of fact were based.
In light of the contents of the Tribunal's decision record, I find that there has been no breach of s.430 in this case.
Breach of Section.424A
A consideration of the information relied upon by the Tribunal in reaching its decision suggests that it was information to which s.424A(1) had no application. Section 424A provides:
(1) Subject to sub-s.(3), the Tribunal must:
(a) give to 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;
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review;
(c) invite the applicant to comment on it.
(2) …
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of whom the applicant or other person is a member;
(b) that the applicant gave for the purpose of the application; or
(c) …
The Tribunal's finding in this case turned on the credibility finding it made in respect of the applicant. That credibility finding was based on information given by the applicant to the Tribunal at the hearing. Information given in those circumstances falls within the exception contained in s.424A(3)(b). Because of that, no s.424A(1) obligations arose in the circumstances of this application. Consequently, no jurisdictional error is demonstrated in respect of any application of s.424A to this claim.
Breach of Section.425
The Tribunal’s decision records how the issues were discussed at the hearing and the Court Book records what the issues before the delegate were. As the High Court’s judgment in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 demonstrates, in order for the Tribunal to discharge its obligations under s.425, the applicant must be aware of the matters which are in issue, even though there is no formal joinder of issue, so he can give evidence and present arguments in relation to them. In this case, the applicant has not identified any issues which he says were not made known to him as being ones arising in relation to the decision under review.
A consideration of the facts of the case and the Tribunal's decision indicates that relevant issues were:
a)the allegation of union involvement;
b)punishment for union involvement by way of detention;
c)reporting conditions and employment consequences; and
d)the re-issue of the cancelled passport.
These issues were clearly canvassed between the Tribunal member and the applicant and it is clear that there has been no failure to give the applicant a meaningful invitation to attend the hearing. Consequently, no breach of s.425 has been demonstrated.
Possible additional ground
One possible interpretation of the first pleaded ground of the amended application is, as the Minister has submitted, that the Tribunal did not notify the applicant of the findings it would make against him before the decision was made. However, there is no obligation on the Tribunal to disclose its thought processes to the applicant. As the High Court said in SZBEL's case at [48]:
… as Lord Diplock said in F Hoffmann-La Roche and Co AG v Secretary of State for Trade and Industry:
“the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment. (footnotes omitted).
Consequently, should the applicant be asserting that the Tribunal should have notified him of the findings it would make prior to making its decision and was in error for not doing so, that assertion is not made out.
In his oral submissions today the applicant has raised a number of additional issues to which I now turn.
The Tribunal has no evidence to say I was not a refugee
The task of the Tribunal is to make a decision on the information which is presented to it by the applicant together with the results of any additional inquiries it might make and whatever else appears in the Department's file. Although the Tribunal has a power to make inquiries, it is under no obligation to make inquiries. Rather, it is the applicant's task to put before the Tribunal sufficient information that can lead the Tribunal to reach the level of satisfaction necessary to conclude that the issue of protection visa is appropriate, or more particularly, mandated.
Section 65 provides that after considering an application the Minister is to grant the visa if he is satisfied that the criteria have been met, but if he is not so satisfied he must refuse to grant the visa. A criterion for the issuing of a protection visa is found in s.36 where para.2(a) provides:
A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
Therefore, it is for the applicant to put sufficient material before the Tribunal that it can reach that level of satisfaction. It is not a question of the Tribunal having no evidence that the applicant was not a refugee.
Consequently, this ground does not demonstrate any jurisdictional error on the part of the Tribunal.
I was entertaining giving more information to the Tribunal but I was not given time to do that
The applicant has not taken the Court to anything in the Court Book which indicates that he sought an adjournment or put the Tribunal on notice that he wished to provide more information that it already had. Nor has he submitted any other evidence to the Court on this topic. The application to the Tribunal was received by it, according to the received stamp appearing on the copy in the Court Book, on 7 June 2005 (CB 49). The original decision of the Tribunal was signed on 16 September 2005. It was quashed by order of this Court on 1 June 2006. The Tribunal wrote again to the applicant on 6 July 2006
(CB 70) inviting the applicant to provide any documents or written arguments he wished the Tribunal to consider when it heard the matter again. The hearing before the Tribunal took place on 15 August 2006, according to the letter of invitation dated 20 July 2006 (CB 72-73). The Tribunal's decision was not signed until 24 October 2006.
It is clear that the applicant had some considerable time in which to get his evidence together to put to the Tribunal. In his response to submissions by the Minister today, the applicant indicated that it was only a month ago that he had been contacted by a friend who knew someone in the police department who could arrange for the evidence to be sent over. Any evidence which the applicant might present at this point could only be presented to this Court, but as these are proceedings for judicial review and not for a rehearing on the merits of the underlying application for a protection visa, that evidence would be of no assistance to the Court.
Attempt to contact panel scheme adviser
The applicant has said from the Bar table that he has endeavoured to make contact with the legal adviser appointed under the Legal Advice Scheme operated by this Court, but has been unsuccessful. No application for an adjournment of these proceedings has been made by the applicant on that account. This is not a ground of review of the Tribunal's decision and no jurisdictional error is demonstrated in respect of it.
Applicant cannot return to China
The submissions made by the applicant in respect of his fears associated with a return to China invite the Court to reconsider the merits of the application he brought before the Tribunal. The duty of the Court in proceedings such as these is to consider the process adopted by the Tribunal to determine whether or not there has been any jurisdictional error in the conduct of the Tribunal's proceedings or the articulation of its decision. It is not concerned with the outcome of the Tribunal's decision, nor with whether there have been any errors of fact committed by the Tribunal in the course of its decision-making unless such an error is an error of jurisdictional fact. No such error associated with a jurisdictional fact is apparent in these proceedings and this ground is not made out.
Conclusion
Consequently, jurisdictional error not having been demonstrated in respect of the decision of the Tribunal, the application will be dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 11 April 2007
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