SZHNC v Minister for Immigration

Case •

[2006] FMCA 1443

•

13 September 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHNC v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1443
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of Refugee Review Tribunal 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 – applicant claims fear of persecution for reasons of his religion – no jurisdictional error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 65, 422B, 424A, 425, 474
Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72
Re: Minister for Immigration & Multicultural Affairs ex parte; Durairajasingham (2000) 168 ALR 407
Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 276
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
Yo Han Chung v University of Sydney [2002] FCA 186
Applicant: SZHNC
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 3225 of 2005
Judgment of: Scarlett FM
Hearing date: 13 September 2006
Date of Last Submission: 13 September 2006
Delivered at: Sydney
Delivered on: 13 September 2006

REPRESENTATION

The Applicant: Appeared in person
Solicitors for the Respondents: Phillips Fox

ORDERS

  1. The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.

  2. The application is dismissed.

  3. The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3225 of 2005

SZHNC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal.  The decision was signed on 13th September 2005, by coincidence a year ago today, and was handed down on 4th October 2005. 

  2. The Tribunal affirmed the decision of the delegate of the Minister not to grant the applicant a protection visa. 

  3. The applicant asks the Court for:

    i)A declaration that the Tribunal decision was invalid and contrary to law.

    ii)An order in the nature of certiorari quashing or setting aside the Tribunal decision.

    iii)An order in the nature of mandamus remitting the applicant's application for a visa to the Refugee Review Tribunal.

  4. The applicant is a citizen of the People's Republic of China.  He arrived in Australia on 27th February 2005, and applied for a protection visa on 29th March.   On 26th April 2005 the application for a visa was refused. 

  5. The applicant applied to the Refugee Review Tribunal for a review of that decision on 31st May 2005.  He did not provide any additional information with his application. 

  6. The Tribunal wrote to the applicant and invited him to attend a hearing and give evidence on Tuesday, 6th September 2005.  The applicant attended the Tribunal and gave evidence on that day.  The applicant brought his passport with him to the hearing. 

  7. The first thing that occurred was that it became clear that the applicant did not know what his migration agent had written in his application for a protection visa.  At page 86 of the Court Book in the Tribunal decision the Tribunal is recorded as telling the applicant that a claim was made that he feared persecution on the basis that he was a Christian. 

  8. The applicant said that he was not, and that he did not make those claims to the migration agent.  He added that when the agent had given him the invitation to the hearing, she had tried to persuade him not to attend. 

  9. The Tribunal records that after the hearing the applicant engaged another migration agent.   With the aid of that agent, he provided a statutory declaration.  That declaration can be found at pages 68 through to 73 of the Court Book. 

  10. The Tribunal refers to the matters in the applicant's statutory declaration on pages 86 through to 88 of the Court Book. 

  11. The Tribunal's findings and reasons are set out on pages 88 through to 92 of the Court Book.  The Tribunal found that the applicant is a national of the People's Republic of China and I note that the applicant had produced his passport at the hearing. 

  12. The Tribunal went on to say this, at page 89:

    I accept that the applicant did not make the claims set out in the protection visa application and that they were fabricated by Orchid Sit or someone associated with her.  As the applicant has resiled from the claims made in the protection visa application,


    I have not made findings on these claims.  I accept that the claims made during the hearing are the applicant's claims to refugee status.

  13. The Tribunal went on to note that the claims made by the applicant in the statutory declaration that was provided after the hearing were substantially the same as the claims that the applicant had made in his oral evidence at the hearing.

  14. The Tribunal noted the applicant's claims that he was from Tianjin, but did not accept that he was at adverse interest to the Chinese authorities. 

  15. The Tribunal took the view that aspects of his evidence were internally inconsistent and implausible.  The Tribunal went on to accept that there were some parts of the applicant's evidence that related to his claim, but did not accept that the applicant had planned the demonstration, or that a person of his profiles would be considered to have planned an anti-government demonstration, or having an anti-government profile.

  16. The Tribunal did not accept on the evidence before it that the applicant had ever been involved in political activities, and overall did not accept that he was of any adverse interest to the Chinese authorities for reasons of his political opinion.

  17. The Tribunal noted the applicant's claim that he was unemployed and that he had lost his government job in 1999.   However, the Tribunal was not satisfied on the evidence before it, that the applicant had been dismissed from his job for a refugee's convention reason, or that he had been prevented from working or restricted in his ability to find work since then for a convention reason.

  18. The Tribunal was not satisfied that the applicant's employment status gave rise to a well founded fear of persecution for a convention reason.

  19. The Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugee's Convention, and therefore did not satisfy the criterion set out in sub-s.36(2) of the Act for a protection visa.

  20. The applicant's amended application was filed on 29th March 2006. The amended application sets out material about sub-ss.65(1) and 36(2) of the Migration Act. There is also a lengthy exposition of the definition of "refugee."

  21. That material is identical to that set out in the Tribunal decision and can be found on pages 79 through to 81 of the Court Book. 

  22. The applicant goes on to say that there was an error of law in the Tribunal's decision constituting a jurisdictional error, and that there was procedural error in the Tribunal's decision constituting an absence of natural justice.  He sets out eight paragraphs of particulars of those claims. 

  23. The first ground, or the first particular, is:

    The Tribunal has accepted that I am "A national of the People's Republic of China (PRC)", which means that it must accept that I am outside of my country.

  24. There appears to be no issue about that fact. 

  25. In particular 2 the applicant goes on to say that:

    The Tribunal cannot deny the fact that I must fear persecution -

    and sets out matters that he fears on his return.

  26. The third particular claims that the Tribunal failed to properly determine the applicant's fear of persecution, and has misunderstood his case, failed to consider essential claims in his application, asked itself a number of wrong and irrelevant questions, failed to identify and consider the relevant issues to be determined, and incorrectly assessed his credibility.

  27. The applicant goes on to set out his opinion as to why the Tribunal has fallen into error in that way. 

  28. In Paragraph 4, the applicant claimed that the Tribunal failed to properly determine his claims that his fear of persecution for a convention reason must be well founded.  He said that the Tribunal had misunderstood his case, failed to consider essential claims in his application, asked itself a number of wrong and irrelevant questions, failed to identify and consider the relevant issues to be determined, and incorrectly assessed his credibility.

  29. He then sets out paragraphs about factual issues and submits that the Tribunal should have asked itself other questions.  He sets out a number of paragraphs claiming that the Tribunal had ignored his essential claims in respect of a number of people from China. 

  30. The solicitor for the first respondent submits, and I believe correctly, that all of those four grounds seek to engage in merits review of the Tribunal decision.  They are essentially recitations of factual matters that amount to no more than a challenge to the Tribunal's factual findings. 

  31. They challenge the Tribunal's credibility findings, although it is well accepted that findings of credibility are properly the function of the administrative decision maker, and not susceptible to judicial review. 

  32. Credibility findings are essentially findings of fact, and so long as there is evidence upon which those findings can be made, there is no jurisdictional error.  I am referred to Re: Minister for Immigration & Multicultural Affairs ex parte; Durairajasingham (2000) 168 ALR 407 at [67].

  33. The applicant's fifth ground refers to a claim that the Tribunal failed to rely on important independent country information.  The ground also includes a claim of apprehension of bias and a complaint that the Tribunal proceeded on a misunderstanding of the law, including a misunderstanding of the legal meaning of "refugee."

  34. There is no obligation on the Tribunal to consider independent country information.  There is certainly no obligation upon the Tribunal to use its powers under s.424 to conduct its own independent inquiries. 

  35. There is no evidence of bias either actual or apprehended. 


    The question of bias, or bad faith, or lack of bona fides has been covered in detail in a number of decisions of the Full Court of the Federal Court, including SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [43] to [48]. There is no evidence of bias.

  36. As to the claim of a misunderstanding on the part of the Tribunal as to the legal meaning of "refugee", the applicant's amended application sets out the definition of "refugee" in article 1A(2) of the Refugees Convention, and its four key elements which are contained word for word in the Tribunal's own decision. 

  37. The applicant's sixth ground complains of a breach of s.424A of the Migration Act. The applicant sets out three assertions and made oral submissions on the same point. He says, quote:

    The Tribunal failed to comply with its obligations under


    sub-s. 424A(1) of the Act:

    (a)From the beginning to the end the Tribunal never provided me clearly and accurately particulars of the information, especially negative information or negative issues, to me at any time before, during or after the Tribunal's hearing.

    (b)The Tribunal failed to ensure me to understand genuinely and properly that those pieces of information or issues would be directly in relation to my review application.

    (c)The Tribunal failed honestly and fairly to invite me to comment on those pieces of negative information or negative issues.

  38. The Tribunal's decision makes it clear that the Tribunal made its decision on the applicant's oral evidence to the Tribunal, and the applicant's statutory declaration that he provided after the Tribunal hearing.

  39. In each case, that material was information provided by the applicant to the Tribunal for the purpose of the hearing. As such, it all falls within the exception provided in s.424A (3) (b) of the Migration Act.

  40. The Tribunal specifically accepted that the claims in the applicant's original protection visa had not been made by the applicant, and that they were fabricated by another person. In the circumstances, the Tribunal gave no consideration to that material at all. 

  41. To my mind, the circumstances here can be distinguished on the facts from those in Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72 where the Tribunal mentioned a letter written by anther person to the Tribunal which as adverse to the applicant's claims but specifically declined to consider those claims.

  42. The Full Court of the Federal Court held that in that case there had been a breach of s.424A(1) of the Migration Act.

  43. In this case the material to which the Tribunal has referred was material that had been provided by the applicant's migration agent, and had been discussed by the Tribunal with the applicant, at which time it became clear that the claims in the application for a protection visa were not the applicant's claims.

  44. The Tribunal had disclosed this to the applicant and specifically declined to consider the material, and in my view this was not a breach of s.424A of the Migration Act.

  45. The applicant's seventh ground was an allegation that the Tribunal failed to comply with its obligations under s.425 of the Migration Act. The applicant was invited to attend a hearing and did attend.


    The applicant did give oral evidence with the aid of an interpreter, and complained in his statutory declaration submitted after the hearing, that there was some deficiencies in the interpreter's interpretation of certain terms. 

  46. The Tribunal considered that claim at page 89 of the court book, but formed the view that the examples given by the applicant were of a very minor nature and used these words, quote:

    The fact that the claims made in the statutory declaration are substantially the same as those made during the hearing strongly suggests that the standard of interpreting at the hearing was satisfactory overall.

  47. The applicant has not provided any transcript of the hearing to provide any evidence of any improper behaviour by the Tribunal member at the hearing.  I accept that in certain circumstances the way in which the Tribunal conducts a hearing may bring about a finding of procedural unfairness such as to constitute jurisdictional error. 

  48. There is no evidence before me that this was the case in the application under review. 

  49. In the seventh ground, the applicant also claims what appears to be a breach of s.424A of the Migration Act, and he adverted to that in his oral submissions. The applicant claimed at ground 7(b), quote:

    During the Tribunal's hearing, the Tribunal never provided me clearly and accurately particulars of the information, especially negative information on negative issues, to me at any time. 


    And the Tribunal failed to ensure me to understand genuinely and properly that those pieces of information or issues would be directly in relation to my review application.   And the Tribunal failed honestly and fairly to invite me to comment on those pieces of negative information or negative issues.

  50. I accept the fact that when a hearing is conducted under s.425 of the Migration Act, that s.424A of the Migration Act still has a role to play. This has been made quite clear in the judgment of McHugh J in SAAP v Minister for Immigration Multicultural and Indigenous Affairs [2005] HCA 24.

  51. But again, the matters that arose during the hearing arose directly from the applicant's own evidence to the Tribunal.  As such, they were covered by sub-s.424A (3) (b).

  52. The Tribunal is not bound to disclose its thought processes, and the Tribunal's thought processes or determinations based on the evidence are not matters to which any obligation under sub-s.424A(1) applies. 

  53. If, on the other hand, the submission is that in conducting a hearing under the provisions of s.425, the Tribunal was obliged to not only indicate the negative issues but invite oral comment, it may be that the person who drafted the application on behalf of the applicant is suggesting a breach of the common law natural justice hearing rule.

  54. As this matter was at all times dealt with after s.422B of the Act came into force, there is no such breach shown.

  55. In respect of this point the applicant appeared to be of the view in oral submissions that where a Tribunal affirms the delegate's decision that the applicant has some sort of a right of reply to the Tribunal.  That is not an obligation where sub-s.424A has otherwise been complied with.

  56. If an applicant is dissatisfied with the findings of the Refugee Review Tribunal, the appropriate remedy is an application for judicial review made in the Federal Magistrates Court under s.476 of the Migration Act.

  57. In my view, all of the contentions set out in the amended application must fail.  No jurisdictional error has been made out. 

  58. I am, however, aware that the applicant was not legally represented at the hearing.  He may have had other advice, but as he is not represented at the hearing, the Court is required not only to consider the arguments put by the applicant, but also consider independently whether an arguable case based on the material would be made out.  (See Yo Han Chung v University of Sydney [2002] FCA 186 at [31] to [34]).

  59. My independent consideration of the material does not show any arguable case to be made out. 

  60. It follows, then, that there is no jurisdictional error. Where there is no jurisdictional error, the decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. The respondent submits correctly that in Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 276, that the High Court of Australia upheld the validity of s.474.

  61. It then went on to consider how s.474 should be reconciled with the remainder of the Migration Act, and concluded that s.474 validly operates to prevent the judicial review of all decisions under the Act, except those vitiated by jurisdictional error.

  62. I would also comment that s.474 does not operate to prevent the judicial review of decisions under the Act which are specifically said not to be privative clause decisions, but those are few and far between.

  63. As there is no jurisdictional error and the decision is a privative clause, sub-s.474(1) of the Act means that the decision is not subject to the declaration, or an order in the nature of certiorari or mandamus that the applicant seeks. The application will be dismissed with costs.

  64. There is an application for costs.  There is no reason that I can see that costs should not follow the event.  The amount sought by the first respondent Minister is $3,500.00.  I note that this application was commenced prior to 1st December 2005.  In my view the costs are appropriate, and I propose to make that order.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  28 September 2006

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