SZHPM v Minister for Immigration

Case •

[2006] FMCA 1428

•

26 September 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHPM v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1428
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant Protection (Class XA) visa – citizen of China claiming fear of persecution for reason of religious belief – applicant claims to have been a Christian – where Tribunal wrote two letters to the applicant seeking information and comments – one later was written according to Migration Act 1958 (Cth) s.424A – allegation of bias – whether Tribunal failed to comply with Migration Act s.424A – information does not encompass the Tribunal's subjective appraisals, thought processes or determinations – privative clause – no jurisdictional error.
Migration Act 1958 (Cth), ss.424, 424A, 474
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 followed
Yo Han Chung v University of Sydney [2002] FCA 186 applied
Applicant: SZHPM
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 3367 of 2005
Judgment of: Scarlett FM
Hearing date: 10 August 2006
Date of Last Submission: 17 August 2006
Delivered at: Sydney
Delivered on: 26 September 2006

REPRESENTATION

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

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 $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3367 of 2005

SZHPM

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 Refugee Review Tribunal signed on 30th September and handed down on 25th October 2005. The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a protection visa.

  2. The Applicant seeks writs of prohibition, certiorari and mandamus.

Background

  1. The Applicant is a woman from The People’s Republic of China who arrived in Australia on 8th March 2005. She applied for a Protection (Class XA) visa on 5th April but it was refused on 5th May 2005.


    The Applicant then sought a review of that decision from the Refugee Review Tribunal.

Application for review by the Refugee Review Tribunal

  1. The Applicant lodged her application for review at the registry of the Tribunal on 31st May 2005. In her application she provided no telephone numbers and indicated that she did not have an adviser acting for her. She gave as her mailing address an address in the Sydney Central Business District. The Applicant provided no further information with her application.

  2. The Tribunal wrote to the Applicant at her mailing address on


    12th August 2005, inviting her to attend a hearing, which was to take place at 9:30am on Friday 23rd September 2005.

  3. On 15th August, the Tribunal wrote to the Applicant again, asking her to provide additional information about two matters:

    a)Her religious beliefs, including what denomination she belonged to, and whether she had any proof; and

    b)Whether she had any medical proof that she suffered from neurasthenia, and how it related to her claims.

  4. The Tribunal asked the Applicant to provide that information by


    7th September 2005. This letter appears to have been written in accordance with s.424 of the Migration Act 1958.

  5. The Tribunal also sent another letter to the Applicant, also dated


    15th August. This letter informed the Applicant that the Tribunal had information that would, subject to her comments, be the reason or part of the reason for deciding that she was not entitled to a protection visa. The letter asked the Applicant to comment on the fact that she had presented to the Australian Embassy in China as a Sales Manager of an overseas Trading Company seeking to do business in Australia.

  6. The letter also asked the Applicant to comment on this statement:

    Individuals who have obtained PRC passports and exit permits to leave the PRC have been thoroughly vetted by the PRC security authorities.

  7. The letter told the Applicant that the information was important because:

    a)It raised doubts about her credibility; and

    b)The fact that the Applicant was able to leave China on her own passport meant that she was of no interest to the authorities.

  8. The letter asked the Applicant to provide written comments by


    7th September 2005 and warned her that failure to do so might mean that the Tribunal would decide her case without further notice to her. The wording of the letter makes it clear that the Tribunal was seeking to comply with the requirements of s.424A of the Migration Act 1958.

  9. The Applicant returned the Response to Hearing Invitation Form on


    22nd August, indicating that she wished to attend the hearing and would require a Mandarin interpreter.

  10. The Applicant wrote again to the Tribunal on 6th September 2005.


    In that letter she replied to the two matters raised in the Tribunal’s second letter of 15th August (the “s.424A letter”). She also forwarded a handwritten document in Chinese accompanied by a typed English translation. The document was a medical certificate showing that the Applicant had received treatment for various conditions since early March 2003.

  11. The Applicant attended the hearing on 23rd September 2005 and gave evidence with the aid of a Mandarin interpreter. She told the Tribunal that the company for which she worked had forced her to have a ‘ring’ inserted as a birth control measure. This caused her pain and health problems, including loss of hair (neurasthenia). She also said that she had turned to Christianity and met with workmates on Sundays for religious ceremonies. This was opposed by her employer and, after a minor fight with a company security guard, she was detained at the local police station for 6 days.

  12. The Tribunal referred in its decision to a DFAT Country Information Report of 12th February 1998 that said that, generally speaking, individuals who obtained Chinese passports and exit permits had been thoroughly vetted by the securities and it was assumed that they would not be on any ‘wanted list’ on their return to China.[1]

    [1] See Court Book at page 77

The Tribunal’s Findings and Reasons

  1. The Tribunal’s findings and reasons are to be found on pages 77 to 80 of the Court Book.

  2. The Tribunal accepted that the Applicant is a national of the People’s Republic of China. The Applicant had produced copies of her passport when she applied for a protection visa.

  3. The Tribunal accepted that applicants for refugee status can yield to the temptation to embroider their accounts, in the case the Tribunal found that:

    The applicant’s main claims were not able to be sustained at the hearing and were not supported by other evidence.[2]

    [2] Court Book at page 78

  4. The Tribunal found the Applicant’s claims about her professed Christian beliefs to be implausible, especially as she said that she no longer believed now that she is in Australia but would believe again if she were to return to China. When the Tribunal asked the Applicant why she did not reply to the s.424 letter about her religious beliefs, the Applicant first said that she had not answered clearly, but, when challenged that she had not answered at all, said that in the People’s Republic of China people did not talk about that detail.

  5. The Tribunal found that the Applicant was not a Christian, saying:

    She did not reply to the s.424 request, or satisfy the Tribunal in this regard at the hearing. At the hearing her answers were that she no longer believed in Christianity. The applicant does not attend church in Australia, and did not provide convincing reasons for not doing so. The Tribunal finds it inimical that a Christian could stop believing in Christianity whilst in Australia, but possibly rekindle her beliefs if she were to return to the PRC.[3]

    [3] Court Book at page 78

  6. For reasons it set out in that same paragraph, the Tribunal did not accept the Applicant’s claims in relation to her religion and found her not to be a credible witness. Consequently, the Tribunal did not accept that the Applicant had been arrested and placed in detention for 6 days or that she influenced other workers to believe in Christianity.

  7. The Tribunal was not convinced about the Applicant’s claimed medical issues, either. The Tribunal did not accept that the Applicant, who claims to be working for 6 days a week for $400.00, could not afford to have any medical treatment. The Tribunal found that the Applicant had not attempted to have any of her medical issues treated and did not accept the Applicant’s explanations.

  8. The Tribunal found that there was no independent medical evidence that supported the Applicant’s claims. It rejected the medical certificate that the Applicant had obtained from China, placing no weight on it. Because of the Tribunal’s findings that the Applicant was not a credible witness, the Tribunal was not satisfied that the Applicant’s illnesses were related to a Convention reason.

  9. The Tribunal did not accept any of the Applicant’s claims and found her not to be a credible witness. As a result, the Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason.

  10. As the Applicant did not satisfy the criterion set in s.36(2) of the Migration Act, the Tribunal affirmed the delegate’s decision not to grant a protection visa.

Application for judicial review

  1. The Applicant commenced proceedings for review in this Court by filing an application on 17th November 2005. She filed an amended application on 15th March 2006, in which she set out 6 grounds for relief:

    i)The Tribunal failed to consider her claims, although she had provided a statement in reply to the Tribunal’s s.424 request concerning her religious belief.

    ii)The Tribunal was biased against her.

    iii)The Tribunal did not provide her with adequate particulars of the independent information.

    iv)The Tribunal did not provide her with an adequate opportunity to respond to the substance of the information.

    v)The Tribunal misunderstood her claims. She did not need much medical treatment in Australia because she could practice Falun Gong.

    vi)The Tribunal’s satisfaction that she was not a refugee was not based upon reasoning that provided a rational or logical foundation for that belief.

  2. The Applicant did not file any written submissions initially, but made oral submissions at the hearing. She told the Court that she had answered the Tribunal’s s.424 statement, although she did not have a copy of her reply. Eventually, it became clear, thanks to the assistance of counsel for the Minister, Ms McNaughton, that the Applicant was referring to the medical certificate that she had submitted, which did answer one part of the s.424 request.

  3. When asked by the Bench about her claim that the Tribunal Member was biased, the Applicant said that the fact that the Tribunal did not believe her showed that the Tribunal Member was biased. She said that when she gave her evidence, the Tribunal Member kept shaking his head and showed that he did not believe her.

  4. The Applicant told the Court that she could not recall some of the Tribunal’s questions very clearly. She said that when she was asked about her religion she could not remember, because at her age her memory is not very good. In China, she said, a person over the age of 40 is regarded as very old.

  5. The Applicant told the court that the Tribunal had misunderstood her application. She said that the Tribunal was biased, based on the assumption that her evidence was not credible, so it refused her application.

  6. The Applicant told the Court that the Tribunal did not have any evidence that she was not a refugee. The Applicant also claimed that the Tribunal did not follow the provisions of the Migration Act in making its decision. By this, she said she meant that the Tribunal breached s.424A of the Migration Act by not notifying her in writing of the reasons for refusing her application and giving her the opportunity to comment on them.

  7. The Applicant referred the court to the decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24.

  8. Counsel for the Minister had prepared a written outline of submissions. In oral submissions she said that there was no evidence of bias on the part of the Tribunal. She told the court that the medical certificate provided by the Applicant could be regarded as a response to the Tribunal’s s.424 letter, even if an incomplete one.

  9. In response to a request from the Applicant, I agreed to allow her the opportunity to make a further submission on the issue of the reply to the Tribunal’s s.424 letter. I also permitted the Respondents to make a submission in reply.

  10. The Applicant filed a short written submission on 15th August 2005.


    In her submission she made these points:

    When I received letter from RRT requesting for more information, I did reply that letter. But that letter was just asking for information for the consideration of my application, it was not the reason or part of the reason for affirming the decision from RRT. RRT just asked me those questions for further consideration of my application…

    I believe that the Tribunal failed to carry out its statutory duty. RRT failed to consider my application for a protection as it failed to notify me the reason or part of the reason for affirming the decision. I lost the chance to comment upon the reason for affirming the decision…

  11. In her submission in reply, filed on 17th August 2006, Ms McNaughton pointed out that the Applicant, when sending the documents by way of the medical certificate and translation, only replied to point 2 of the


    s.424 letter. The Applicant did not reply to point 1 of the letter, which requested information concerning her religious beliefs, including proof.

  12. Ms McNaughton also submitted that s.424A of the Act does not require the Tribunal to ask for the Applicant’s comments on the reasons for affirming the decision, referring the Court to the judgment of Allsop J in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 at [206]:

    Information does not encompass the Tribunal’s subjective appraisals, thought processes, or determinations:

  13. In my view, Ms McNaughton’s submission on that point is a correct statement of the law, and I respectfully adopt it.

Conclusions

  1. I will deal with the Applicant’s grounds in order.

  2. Ground 1 claims that the Tribunal failed to consider the Applicant’s claims and failed to consider her statement in reply to the s.424 request. In my view, the Tribunal did consider the Applicant’s claims, including the documents she submitted in reply to the s.424 request. The Applicant did not answer the first part of the letter, which asked for information about her religious beliefs.

  3. The fact that the Applicant did not reply to that part of the letter was only part of the reason why the Tribunal did not accept that the Applicant was a committed Christian. It is clear that the Tribunal did not find the Applicant to be a credible witness. This ground must fail.

  4. Ground 2 claims that the Tribunal was biased and based its findings on assumptions rather than evidence. There is no evidence of bias. Bias must be strictly proved. The fact that the Tribunal did not believe the Applicant’s evidence in several important areas is no proof of bias.


    The argument that the Tribunal was biased because it did not believe the Applicant is an assertion, not an argument. This ground fails.

  5. Ground 3 claims that the Tribunal did not provide the Applicant with adequate particulars of the independent information. Ground 4 claims that the Tribunal did not give the Applicant an adequate opportunity to respond to the substance of the independent information.

  6. The only independent information that the Tribunal relied on was the DFAT Country Information about passports and exit permits, the substance of which was specifically covered in the Tribunal’s s.424A letter to the Applicant of 15th August 2005. The Applicant did have an opportunity to respond to it. She wrote a reply to the Tribunal addressing that very point on 6th September 2005. Both grounds fail.

  7. Ground 5 claims that the Tribunal misunderstood the Applicant’s claims about her health. It is clear from pages 79 and 80 of the Court Book that the Tribunal did consider the aspects of the Applicant’s claims about her health, and there was evidence before it to allow it to make the findings it did. There is no evidence that the Applicant told the Tribunal anything about practising Falun Gong in Australia, which has aided her health to improve. This ground fails.

  8. Ground 6 claims that the Tribunal’s satisfaction that the Applicant was not a refugee was not based on a rational or logical foundation.


    This particular ground still appears regularly in applications for review. It is based on a misconception. The Tribunal does not have to have evidence upon which it must base a finding that the Applicant has not met the criterion for a protection visa. It is not incumbent on the Tribunal to provide evidence to justify rejection of an applicant’s claims. If the Applicant does not provide evidence sufficient to satisfy the Tribunal, then the application for a visa must fail (see SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225).

  9. In the Applicant’s written submission filed after the hearing, she claimed that she did reply to the Tribunal’s s.424 letter. The fact is that she only replied to half of it. She provided a medical certificate in reply to the request for medical evidence, but she did not provide any reply at all to the question about her religious belief and what proof she could provide.

  10. The Applicant’s other claim, that the Tribunal failed to comply with


    s.424A(1) of the Migration Act by not notifying her of the reason or part of the reason for affirming the delegate’s decision is based on a misconception of the meaning of s.424A. The section requires the provision of information (not exempted by s.424A (3)) which forms the reason, or part of the reason, for affirming the decision under review. The section does not require the Tribunal to notify the Applicant of its thought processes or determinations.

  11. In this case, the main reason why the Tribunal did not accept the Applicant’s claims is that it did not find her to be a credible witness. Credibility is a finding of fact.

  12. The Applicant’s grounds for relief all fail. I am aware that she is not legally represented, although the Court file shows that she did obtain legal advice from a barrister as part of the Refugee Review Tribunal legal advice scheme. As she was not represented at the hearing, I have made my own independent consideration whether an arguable case for the applicant could be made out (see Yo Han Chung v University of Sydney [2002] FCA 186 [31]-[34]). I do not consider that any arguable case could be made out.

  13. There is no jurisdictional error. Accordingly, the Tribunal decision is a privative clause decision as defined by s.474(2). A privative clause decision is final and conclusive, and it is not subject to prohibition, mandamus, injunction, declaration or certiorari (s.474(1) (c)).

  14. The application will be dismissed and I will take submissions on costs.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  6 September 2006


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