SZHVD v Minister for Immigration
[2007] FMCA 1634
•27 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHVD v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1634 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – adverse credibility finding – no failure pursuant to s.424A of the Act – no evidence to support allegation of bias – no jurisdictional error arising from Tribunal delivering reasons orally – subsequent compliance with s.430 of the Act – no failure to provide the applicant with a meaningful opportunity to be heard – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.414, 424A, 430, 425, 65, 36(2) |
| SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] 150 FCR 214 SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 SZJCD v Minister for Immigration and Multicultural Affairs [2006] FCA 609 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 157 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 SZBELv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | SZHVD |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3676 of 2005 |
| Judgment of: | Nicholls FM |
| Hearing date: | 27 September 2007 |
| Date of Last Submission: | 27 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 27 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Appearance for the Respondents: | Mr G J Johnson |
| Solicitors for the Respondents: | DLA Phillips Fox Lawyers |
ORDERS
The reference to the first respondent be amended to read “Minister for Immigration and Citizenship.”
The application filed on 14 December 2005, as amended on 19 April 2006, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $3,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3676 of 2005
| SZHVD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS 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 14 December 2005 and amended on 19 April 2006 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 1 December 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 27 April 2005. On 3 May 2005, the applicant applied for a protection visa. (The application for a protection visa is reproduced in the Court Book (“CB”) at CB 1 to CB 27.) On 13 August 2005, a delegate of the respondent Minister refused to grant a protection visa to the applicant. On 13 September 2005, the applicant applied to the Tribunal for review of the delegate’s decision.
The applicant’s claims to protection
The applicant claimed in an original statement (reproduced at CB 19) attached to his application for protection that his political views differed from those of the Chinese Communist Party, that he attended public political debates in China and that he met in public with friends to discuss political matters. The applicant claimed that he had expressed disagreement with the terms of Chinese policy in relation to Taiwan, describing this policy as “too strict.” The applicant further claimed to have been persecuted by the Chinese government in 1989 for reasons of his “pro-democracy” political opinion, including claims that he was detained for questioning and brainwashing by authorities.
The Tribunal
These claims were explored by the Tribunal at a hearing before it on 24 November 2005. The Tribunal’s decision record is reproduced at CB 67 to CB 81. A reading of this record reveals that the Tribunal found that the applicant’s substantive claims were not credible (CB 80.4) and that the applicant was not a reliable witness (CB 80.8). The Tribunal noted that the applicant’s evidence about his views regarding Taiwan was vague and lacking in detail or rigour and found discrepancies in his evidence. [It found that the applicant did not face a real chance of persecution in China for a Convention related reason and that the applicant’s fear of persecution was not well founded (CB 80.9).]
Application to the Court
The amended application filed on 19 April 2006 puts forward one ground (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 provide particulars of the information that was the reason, or part of the reason for affirming the decision. Migration Act 1958s. 424A. The Tribunal also was required to explain why the information was relevant and provide the applicant with an opportunity to comment upon 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 the obligation in s.424A(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 requirements to give written particulars 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 stricter 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 si the vehicle for such a claim for review.’
The Court did not accept the 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 i nthe 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 wwas a jurisdictional error.” [Errors in original]
I will also address, at the appropriate time, the grounds put forward in the original application as well.
Hearing before the Court
The applicant appeared in person with the assistance of an interpreter in the Mandarin language. Mr G J Johnson of DLA Phillips Fox appeared on behalf of the first respondent. I also have before me written submissions filed by the first respondent on 17 September 2007.
The applicant submitted a number of claims before the Court today. He stated that the Tribunal misunderstood his application, that the Tribunal was biased against him and that because of these reasons the Tribunal did not consider his claims according to legal procedures. Further, that the Tribunal did not make its decision according to the evidence and that, in relation to s.414A of the Migration Act 1958 (Cth) (“the Act”), the Tribunal breached its obligations because it did not provide him with its reasons for refusing his application before proceeding to make its decision. The applicant also raised the issue of the Tribunal having delivered its decision orally, and I understood this to be a part of the complaint arising out of the Tribunal not giving the applicant an opportunity to comment on its reasons for affirming the delegate’s decision which was the subject of the review.
The Sole Ground of the Application
The sole ground of the application, as set out in the amended application, appears to be a complaint that the Tribunal relied on information in the applicant’s protection visa application (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 (“SAAP”), Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 (“Al Shamry”)) and the claim therefore appears to be, or could be, that such information was caught by the obligation in s.424A(1) of the Act.
I note that the Tribunal’s critical and determinative finding was that the applicant was not a credible witness. It is well settled that findings of fact, including findings as to an applicant’s credibility, are a matter for the Tribunal as the “decision-maker par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407, per McHugh J at [67]).
Insofar as the applicant complains that the Tribunal failed to discharge its obligations pursuant to s.424A of the Act because the Tribunal failed to put to the applicant in writing “information” that, absent comment, would be a reason, or part of the reason, for the Tribunal affirming the decision under review, this ground cannot succeed.
The “information” that the amended application appears to claim should have been put to the applicant falls into two categories: the first is information provided by the applicant himself in his original application to the first respondent’s Department, and the second appears to be country information that was before the Tribunal. The Tribunal rejected the applicant’s claims because it found that he was not a credible witness. On any plain reading of the Tribunal’s decision record, this finding was based on the applicant’s own evidence provided at the hearing before the Tribunal. In one sense, even if this could be said to be “information” for the purposes of s.424A(1) of the Act, such information would fall within the exception contained in s.424A(3)(b) of the Act from the obligation that arises in s.424A(1) of the Act (Al Shamry, SAAP, SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] 150 FCR 214). That is, it is information which the applicant himself provided for the purposes of the review.
Further, I note submissions by Mr Johnson today and agree with him that to the extent that it could be said that the Tribunal relied on information arising by way of “cross-examination” of the applicant at the hearing before the Tribunal, then this is information falling within that exception from the obligation pursuant to s.424A(1) of the Act (SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627, SZJCD v Minister for Immigration and Multicultural Affairs [2006] FCA 609).
To the extent that the applicant complains that the Tribunal failed to put to him “inconsistencies” in the applicant’s claims, such “information” does not fall within the meaning of “information” for the purposes of s.424A of the Act. Further, the Tribunal’s disbelief of the applicant is not “information” or the purposes of s.424A of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) at [17], citing VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471, at 476-477, per Finn and Stone JJ, with approval).
The applicant submitted that the Tribunal breached its obligation pursuant to s.424A of the Act in proceeding in the way that it did, delivering its decision orally, thereby depriving the applicant of an opportunity to comment on the Tribunal’s reasons for affirming the decision under review before it actually made its decision. The obligation to provide an opportunity for comment arising from s.424A of the Act relates to “information” and not the Tribunal’s thought processes or adverse views of the material that has been put before it. I note in this regard in particular the High Court’s decision in SZBYR (at [17]) as to what constitutes “information” for the purpose of s.424A of the Act, given the limited scope of s.424A of the Act.
In relation to country information that was before the Tribunal, I note again that the Tribunal’s decision turned on the adverse view that it took of the applicant’s claims and the applicant’s evidence provided at the hearing. In any event, it is now well settled that country information such as that relied on by this Tribunal is not required to be put to the applicant by way of notice pursuant to s.424A(1) of the Act because of the operation of s.424A(3)(b) of the Act: Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572, QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92).
Looking at the original application to the Court, the applicant complains that the Tribunal was biased against him. The applicant repeated this complaint before the Court today and said that the Tribunal was biased against him because it thought that the applicant was not sincere. As noted above, the Tribunal was entitled, on what was before it, to find that the applicant’s claims were not credible. That is, on what was before it, it was open to the Tribunal to reach this conclusion.
The applicant does not point to anything else, let alone provide evidence to the Court, to satisfy that a claim of bias can be made out. As I explained to the applicant during the course of the hearing today, an allegation of bias is a very serious matter and must be supported by evidence (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361, Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431). (See, for example, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102.) There is simply no evidence put before the Court by the applicant that beyond his assertion to show that the Tribunal was biased.
In his original application and in oral submissions to the Court, the applicant also complains that the Tribunal did not carefully consider his claims and refused his application “immediately” at the hearing. From what the applicant said to the Court today, this would appear to be a reference to the Tribunal having delivered its decision orally.
I should note that I cannot discern any jurisdictional error arising simply from the Tribunal proceeding to deliver its decision orally. Such a course is consistent with the relevant statutory provisions (see, for example, Division 4 of Part 7 of the Act) and the Tribunal did subsequently comply with s.430 of the Act by providing its decision record, which is currently before the Court. Nor with reference to the material that is before the Court now, can I see that the Tribunal did not give careful consideration to the applicant’s claims. Plainly, the Tribunal did provide reasons for its findings which, as noted above, were open to it. That the Tribunal delivered its decision orally does not indicate, let alone establish, a lack of careful consideration of the applicant’s claims. It reflects the Tribunal’s very clear and emphatic rejection of the credibility of the applicant’s claims and I cannot discern jurisdictional error in this regard.
What must be emphasised for the applicant’s benefit, that the Tribunal took an adverse view of the applicant’s evidence does not, in the absence of any other evidence, reveal bias on the part of the Tribunal or a lack of careful consideration of the claims.
I should also note that the applicant complained before the Court today that at the Tribunal hearing the Tribunal member stopped him at various times during the hearing and, I understand from the applicant, that his complaint is that he was therefore denied the opportunity of giving his evidence or explaining his evidence. As I explained to the applicant during the course of the hearing, such complaints, if they are to amount to a ground from which the Court can discern jurisdictional error on the part of the Tribunal, must be supported by evidence put before the Court. I referred the applicant to the occasion when he was first before the Court before a Registrar at the First Court Date on 24 January 2006 and noted that he had the assistance of an interpreter in the Mandarin language and signed short minutes of order that subsequently became, by consent, orders made by the Registrar for the conduct of this matter before the Court. Amongst other orders made on that occasion, order three provided that the applicant file and serve any affidavit containing additional evidence relied upon, including transcript of a Tribunal hearing, by 18 April 2006. The applicant has not provided any transcript of the Tribunal hearing to the Court, even as of today’s date. The only evidence of what occurred at the hearing available to the Court therefore is that contained in the Tribunal’s decision record as to its account of what occurred at the hearing (CB 72, CB 77 to CB 80). The decision record does not reveal any matter which would support the applicant’s complaint.
I also note, although not a matter raised by the applicant either in his application to the Court or before the Court today, that for the purposes of s.425 of the Act that the material before the Court, that is the Tribunal’s account of what occurred at the hearing, reveals that the Tribunal put its various concerns about the applicant’s credibility and the credibility of his claims to him at the hearing. Bearing in mind, therefore, what the High Court relevantly said in SZBELv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, it is clear that the determinative issue in affirming the delegate’s decision (the credibility of the applicant’s substantive claims) was clearly put to him at the hearing. I cannot see that the Tribunal failed in its obligation in regard to s.425 of the Act in providing a meaningful opportunity for the applicant to put forward his claims and to put forward explanations in support of those claims.
Addressing some of the matters arise by the applicant before the Court today, the applicant’s complaint that the Tribunal misunderstood his application, particularly with reference to the Chinese Government’s attitude to dissident political opinion, is, on the material before the Court, not made out. In its setting out of the applicant's claims and evidence I cannot see that the Tribunal misunderstood or misrepresented the claims made by the applicant in this regard and again, with reference to evidence before the Court as to what occurred at the hearing in this regard, the Court is left with the Tribunal's account which similarly does not reveal any such misunderstanding.
It is not clear what the applicant meant by his complaint that the Tribunal did not make its decision according to the evidence. If what is meant by this is that the Tribunal did not accept independent country information relating to the Chinese Government's dealing with those who had different political opinions to those espoused by the authorities in China, or if the applicant means by this complaint that the Tribunal did not make its decision according to his evidence, then such complaints do not rise above a request for impermissible merits review, with which this Court cannot engage (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
Nor is it clear, in this regard, what the applicant meant by his complaint that the Tribunal relied on irrelevant information. I understood this complaint to be another aspect of the complaint that the Tribunal rejected the applicant's application based on its findings of lack of credibility in his claims.
In all, therefore, the Tribunal provided the applicant with an opportunity to attend at a hearing before it and simply, the Tribunal, for the reasons that it gave, did not accept the applicant's claims as being credible and found also the claims to be vague and lacking in detail or rigour. As the Tribunal said the electronic recording of the hearing will clearly show up the discrepancy in the applicant's evidence such that the Tribunal is not able to reach the requisite level of satisfaction as mandated pursuant to s.65 and s.36(2) of the Act such that the protection visa must be granted to the applicant.
I cannot discern jurisdictional error in what is set out in the originating application or the amended application or from what the applicant has said to the Court today, nor otherwise. As I explained to the applicant during the course of the hearing, unless jurisdictional error can be discerned, then the Court is not able to assist him. As no jurisdictional error can be discerned in the Tribunal's decision, the application is dismissed.
It is appropriate that I make a costs order and I do so on the basis that the amount sought is, in all the circumstances, a reasonable amount. I also note that in the relevant Schedule of Costs to the Rules of this Court, the first respondent could have sought an amount up to $5,000.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 8 October 2007
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