SZHSX v Minister for Immigration & Anor - [2007] FMCA 1531

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHSX v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1531

MIGRATION – Review of decision of Refugee Review Tribunal – Tribunal complied with obligation set out in s.424A of the Act – impermissible merits review – wrong finding of fact neither error of law nor jurisdictional error – no jurisdictional error – application dismissed.

Migration Act 1958, s.424A

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162
Minister for Immigration and Multicultural Affairs v Y & Ors (unreported, Federal Court of Australia, Davies J, 15 May 1998)
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
QAAC v Refugee Review Tribunal [2005] FCAFC 92
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
VHAP of 2002 v Minister of Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82
Tin v Minister for Immigration and Multicultural Affairs [2000] FCA
Paul v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 289
Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17
Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v Commonwealthof Australia (1999) 197 CLR 510

Applicant:

SZHSX

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3545 of 2005

Judgment of:

Nicholls FM

Hearing date:

6 September 2007

Date of Last Submission:

6 September 2007

Delivered at:

Sydney

Delivered on:

6 September 2007

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Appearance for the Respondents:

Ms K Hooper

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The reference to the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application filed on 2 December 2005 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3545 of 2005

SZHSX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

I have before me an application filed in this Court on 2 December 2005 and amended on 25 May 2006 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), which was signed on 20 October 2005 and handed down on 10 November 2005, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 6 December 2004 and applied for a protection visa on 17 January 2005 (reproduced in the Court Book (“CB”) at CB 1 to CB 34, with annexures). On 16 March 2005, a delegate of the first respondent refused the application (see CB 35 to CB 36). On 20 April 2005, the applicant sought review of that decision with the Tribunal (CB 46 to CB 50).
The applicant’s claims to protection initially were set out in his application for a protection visa (CB 18). The applicant claimed that a friend had disclosed to him that he paid government officials to secure building contracts and that, as a result of this friendship, the applicant came to the attention of government officials and of police. The applicant claimed that he was arrested and held for questioning for a period of two weeks. Further, at a hearing before the Tribunal on 22 September 2005, the applicant claimed to fear persecution from local authorities because of knowledge that he had of the corrupt activities of local officials and their knowledge that he would expose them to the provincial administration. The applicant claimed that he fled China to avoid persecution.
What is also revealed by the material before the Court is that following the hearing the Tribunal wrote to the applicant by letter dated 22 September 2005 seeking his comments in writing in relation to what he had said at the hearing in relation to the issue of whether the harm that he feared in China arose out of a Refugee Convention reason (reproduced at CB 58 to CB 59). This letter appears to have been sent by registered post to the applicant’s address for service. The applicant’s response, dated 13 October 2005, is reproduced at CB 60.
The Tribunal’s decision record is before the Court in the Court Book and is reproduced at CB 68 to CB 78. The Tribunal made the following findings:
1)While it had some concerns with the applicant’s presentation and evidence at the hearing, the “chief issue” in this matter was whether the action taken against the applicant in the past, or to be taken in the future, was or would be for a Convention reason (CB 75.6).
2)While the Tribunal accepted that harm arising from exposure of corruption can give rise to persecution for reasons of political opinion, and that the applicant had claimed that he had protested against government corruption, it found that he had not provided any evidence that he had made any protest against this corruption until a bribe made by his company failed to result in profit to the company (CB 75.8).
3)It noted that the applicant had become involved in a criminally corrupt business and that when the business venture did not turn out as expected, he made threats against local government officials whom had been bribed (CB 76.3).
4)The Tribunal took the view that these business activities as described by the applicant were of a criminal nature and did not indicate either that the applicant was politically hostile to the authorities or that his actions would have appeared to the authorities as politically hostile (CB 76.4).
5)It found that the actions of the authorities in arresting and questioning the applicant were a response by the authorities to the applicant’s threats and were not action taken against the applicant by reason of his real or imputed political opinion (CB 76.6).
In all, therefore, the Tribunal found that the applicant did not have a well founded fear of harm for a Refugee Convention reason and affirmed the delegate’s decision to refuse a protection visa to the applicant.
The applicant filed an amended application on 25 May 2006 which puts forward one ground of review (with particulars):
“1. The Tribunal failed to carry out its statutory duty
Particulars
(a)     The only information before the Tribunal was that contained in the First Respondent’s file and that given to the Tribunal by the Applicant.
(b) The Tribunal was required to provided particulars of the information that was the reason, or part of the reason for affirming the decision. Migration Act 1958 s.424A. The Tribunal also was required to explain why the information was relevant and provide the applicant with an opportunity to comment on it.
(c) The above particulars had to be provided in writing SAAP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDUSTRIAL AND ETHNIC AFFAIRS (2005) HCA 24 (18 May 2001)
McHugh J.
Para68”… The assumption that no breach of s.424A occurs if the applicant has otherwise been given procedural fairness overlooks the imperative nature of the decision. Nothing in the section suggests that fairness i nthe way in which the Tribunal observes it statutory obligations is an implied limitation on its operation. The section describes a procedural step that, if enlivened by the circumstances of the case, the Tribunal is required to take in every case. Further, the, mandatory nature of obligation in s.4242A(2) (b) points to the conclusion that the failure to provide in writing to the applicant particulars of the adverse material and the invitation to comment upon it amounts to a breach of s.424A.”
para 77 “… If the requirement to give written particulars is mandatory, then failure to comply means that the Tribunal has not discharged its statutory function … it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act … a decision made after a breach of s.424A is invalid.”
Hayne J
para 180 “I consider that the Tribunal was bound to give the appellants written notice of that information and to ensure, as far as reasonably practicle that the appellants understand why it was relevant to the review. The Tribunal failed to do so constituted jurisdictional error.”
para 208”…whether those steps would be judged to be necessary or even desirable in the particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case.”
(d)     The information to be given extends to that information given by the Applicant to the First Respondent as part of his application for a visa.
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v AL SHAMRY (2002) 110 FCR 27
Para 17:…. In our view, ‘applicant’ wherever appearing in s.424A means ‘application for review by the Tribunal of a Ministerial decision’ and ‘application’ correspondingly means the proceeding before the Tribunal which is the vehicle for such a claim for review.”
The Court did not accept that Ministers argument that ‘Application’ in the context was said to mean ‘all information given by the applicant to officials in the department(including that provided to the Tribunal) for the purposes of determining whether to grant a protection visa to the applicant.”
(e)     The Tribunal based it’s findings on the information, or lack of information, contained in the Applicant’s application for a visa and was required, by s. 424A, to give particulars of the information, explain why the information is relevant and provide the Applicant with an opportunity to comment upon it. The Tribunal’s failure to so act was a jurisdictional error.”
By way of the particulars to that one ground, the applicant appears to complain that the Tribunal failed to carry out its obligation pursuant to s.424A of the Migration Act 1958 (“the Act”).
The applicant appeared in person with the assistance of an interpreter in the Mandarin language. Ms K Hooper appeared for the first respondent. I also have before me the first respondent’s written submissions filed on 29 August 2007. Before me today, the applicant stated that he was not satisfied withs the decision of the Tribunal. I should note that, at first, the applicant referred to the decision of the first respondent’s Department but he subsequently clarified to the Court that he meant the decision of the Tribunal. The applicant also complained that his application was refused without sound reasons. He complained that the Tribunal thought that his application was not within the Act, but that in China his case was very serious. Further, he complained that the Tribunal did not give him in writing the opportunity to comment on the reasons as to why it was going to refuse his application.
As a result of the Court seeking to ascertain whether the applicant was in a position to further assist the Court as to the ground and particulars that were set out in the amended application, the applicant insisted that he had drafted the amended application to the Court and that a friend had translated the application into English for him. Unfortunately for the applicant he was unable to assist the Court further because he said that he had forgotten the case of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, and matters raised in the amended application that would assist his case.
The determinative issue that arose from this matter before the Tribunal was primarily whether the harm that the applicant feared had a Convention nexus, that is, a connection.
From what has been put before the Court, it is clear that the Tribunal well understood the possibility that exposure to, and involvement in, corruption could lead to an imputation of a political opinion to the applicant. I note in particular the Tribunal’s reference to the matter of Minister for Immigration and Multicultural Affairs v Y & Ors (unreported, Federal Court of Australia, Davies J, 15 May 1998), but any plain reading of the Tribunal’s decision reveals that based on what the applicant had said at the hearing (and I note that in this regard this was the subject of the Tribunal’s letter of 22 September 2005 to the applicant) that the Tribunal was satisfied that the actions of local authorities were taken for criminal reasons and in a criminal context, and not for the reasons of the applicant’s actual or imputed political opinion. I can only agree with the Minister’s written submissions that on what was before it, this finding was plainly open to the Tribunal, and further, that the Tribunal gave reasons for this.
The applicant’s sole ground in the amended application alleges a failure on the part of the Tribunal to carry out its statutory duty which is particularised as a breach of its obligations pursuant to s.424A of the Act. I note that particular (a) in the amended application asserts that the only information before the Tribunal was that in the first respondent’s file and that given to the Tribunal by the applicant himself. It appears to proceed on the assumption that the Tribunal’s reasons for its decision, at least in part, relied on information that was in the first respondent’s file and not given to the Tribunal by the applicant.
Both this assumption, and indeed the assertion itself, are plainly at odds with a plain reading of the Tribunal’s decision. The matters relevant to the Tribunal’s decision, and the determinative issue that arose from the applicant’s unsatisfactory evidence at the hearing, was that the applicant’s claim to fear harm did not have a Convention nexus. This was based on what the applicant said at the hearing and his subsequent response in writing to the Tribunal’s letter. Any such information falls within the exception contained in s.424A(3)(b) of the Act from the requirements set out in s.424A(1) of the Act.
I should just note that to the extent that the Tribunal said in its decision record that it had before it independent country information relevant to the applicant’s claims (and I refer here to what the Tribunal said at CB 74.2), that such information, in any event, would fall within the exception set out in s.424A(3)(a) of the Act from the obligation contained in s.424A(1) of the Act. There is Full Federal Court authority to sustain what I have just said. (See for example, QAAC v Refugee Review Tribunal [2005] FCAFC 92, Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264, VHAP of 2002 v Minister of Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82.)
In any event, I cannot see that this country information can be said to be even a part of the Tribunal’s reasons for affirming the delegate’s decision. As is revealed at CB 75.7, the Tribunal accepted that based on such information, there was widespread corruption in China. This information, therefore, supported the applicant’s claims and cannot be said to be a part of the reason for affirming the decision under review in the sense as set out by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) at [17].
To the extent that it also appears to be an aspect of the applicant’s complaint that the Tribunal failed to give the applicant the opportunity to comment on its adverse evaluation of his claims, that is, that the Tribunal did not write to the applicant to give him the opportunity to comment on the reasons as to why it was minded to refuse his application, then this assertion is plainly not made out. The Tribunal did write to the applicant with this evaluation and gave him the opportunity to comment, an opportunity which he took up. I should just note, however, in any event, that, as the respondent submits, the Tribunal’s evaluation of the applicant’s evidence is not “information” for the purposes of s.424A of the Act. I note and agree with the reference to the relevant authorities at paragraph 15 of the respondent’s written submissions (Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [54], Paul v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 289 at [95], Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25]) to which I would also add the Full Federal Court decision in the matter of VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471, and of course the High Court’s decision in SZBYR.
Plainly, this is not a case where the Tribunal relied on inconsistencies between information given to the first respondent’s department and information or evidence given to the Tribunal. As the respondent submits, given the High Court’s judgment in SZBYR, particularly paragraphs [17] and [18] of that judgment, the applicant has not shown, nor can it otherwise be discerned, that the information on which the Tribunal relied fell within the understanding of what constitutes “information” for the purposes of s.424A(1) of the Act such that the obligation that is set out in that section is engaged.
I note, given that I have an unrepresented applicant before me, that in an affidavit filed on 2 December 2005 and in the applicant’s original application of the same date, the applicant sets out a number of other further grounds. I did consider whether any of these grounds could be of benefit to the applicant, but am unable to see that any of the grounds as asserted by the applicant can be made out. The applicant asserts that the Tribunal was biased against him. This of course is a very serious allegation as an allegation of bad faith on the part of the Tribunal goes to the very heart of the integrity of the Tribunal member. Such allegations plainly require evidence and must be clearly proved (SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749). The applicant has provided no evidence whatsoever to support any such allegation. There is nothing before the Court now to show that the Tribunal failed to bring an open mind to its consideration of the matter before it (Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17). Nor can it be said, for that matter, that a well informed lay observer would reasonably apprehend that the Tribunal was biased against the applicant (Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425). Any such allegation is plainly of no assistance to the applicant before the Court today.
The applicant also complains that the Tribunal misunderstood his claims. Again, on what is before the Court and in the absence of anything further from the applicant, this complaint is not made out. The Tribunal’s decision record reveals that it well understood the claims initially made by the applicant, and as to what the applicant claimed at the hearing before the Tribunal, the applicant has brought no evidence whatsoever before the Court to challenge the Tribunal’s account of what occurred at the hearing. The applicant’s complaints that the Tribunal was not satisfied as to his well founded fear of persecution and the applicant’s assertions that he suffered persecution from Chinese authorities, in all the circumstances, does not arise above a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
Similarly, given what is before the Court today, the applicant’s complaint that the Tribunal failed to consider his claims also does not rise above a request for impermissible merits review. The applicant asserts by way of the documents filed on 2 December 2005, referred to above, that the Tribunal’s conclusion was not supported with evidence. Clearly, any such assertion in a sense misunderstands the statutory context within which the Tribunal is required to operate. There is no obligation on the Tribunal to disprove the applicant’s claim to be a refugee. What the relevant parts of the Act require (and here I refer to ss.65 and 36(2) of the Act) is that the Tribunal must reach a requisite level of satisfaction that, in effect, the applicant meets the definition of “refugee” as set out in Article 1A(2) of the Refugee Convention. The Tribunal found, for reasons which it gave and findings which were open to it to make, that it could not reach that requisite level of satisfaction.

Nor can I see that the Tribunal’s decision was not rational or logical to the extent that such a ground of review may be available to the applicant. The Tribunal’s analysis was, in my view, well reasoned and proceeded in a logical fashion.
As to the matters raised today by the applicant, the applicant’s claim that the Tribunal refused his application without sound reasons is therefore similarly not sustainable. That his case was serious in China and that the Tribunal saw it differently, again amounts to nothing more than a request for merits review, which this Court is not permitted to engage in. I have already dealt with the applicant’s complaint that the Tribunal did not give him an opportunity to comment on its adverse thought processes before finalising its decision. Although the Tribunal was under no obligation to do so, the Tribunal did in fact give the applicant an opportunity to comment by way of its letter of 22 September 2005.
The applicant may well claim that he is not satisfied with the decision that was made, but, as I explained to the applicant during the course of the hearing today, his lack of satisfaction with the decision, in the absence of any discernible jurisdictional error on the part of the Tribunal, does not assist him before this Court.
I note one further matter, that in its decision record, the Tribunal made reference to Malaysia. This is found at CB 76.7 where the Tribunal said that, “this would be pursuant to a law of general application in Malaysia.” This is clearly an error on the part of the Tribunal. In all the circumstances, what should have been said was “China.” But when looking at the Tribunal’s decision record as a whole, and in particular when looking at its analysis and consideration of the applicant’s claims, it is plain that the Tribunal had “China” in mind in its analysis and it plainly understood that the applicant’s claims arose from, and were to be assessed against, the situation in China. In fact, any plain reading of the Tribunal’s decision record as a whole reveals that the claims were assessed in that context and that it was a law of general application in China to which the Tribunal had addressed its mind.
Even if at its highest it can be said that this was a wrong finding of fact on the part of the Tribunal, there is no error of law, let alone jurisdictional error, in making a wrong finding of fact (Abebe v Commonwealthof Australia (1999) 197 CLR 510). What is plain, in all the circumstances, is that this was a misstatement by the Tribunal and I am satisfied that in all, it did have “China” in mind when it mistakenly referred to “Malaysia.”
In all, I cannot discern jurisdictional error in what the Tribunal has done. As I have already set out, the Tribunal’s findings were open to it on what was before it. The Tribunal gave reasons for these findings and complied with its obligations in terms of procedural fairness to the applicant. None of the grounds put forward by the applicant in either his original or amended application, or indeed the complaints in the affidavit, reveal jurisdictional error on the part of the Tribunal. Nor can I otherwise discern jurisdictional error. The application is therefore dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: A Douglas-Baker

Date: 19 September 2007