SZHVV v Minister for Immigration - [2006] FMCA 1556

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHVV v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1556

MIGRATION – Refugee – claims to fear persecution based on political opinion – Tribunal found the applicant not to be a credible witness – s.424A – impermissible merits review – whether there was a logical or rational basis to support the Tribunal’s decision – the Tribunal’s failure to consider the applicant’s claims – no jurisdictional error – application dismissed.

Migration Act 1958, ss.424A, 65, 36(2), 424A(3)(a), 424A(1), 424A(3)(b), 422B, 425

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Al Shamryv Minister for Immigration & Multicultural Affairs [2000] FCA 1679
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 124 ALR 265
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
SZEEUv Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61

Applicant:

SZHVV

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3699 of 2005

Judgment of:

Nicholls FM

Hearing date:

27 September 2006

Date of Last Submission:

13 September 2006

Delivered at:

Sydney

Delivered on:

27 September 2006

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Ms. M. Jolley

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The Migration Review Tribunal be deleted as the second respondent in these proceedings.
The name of the first respondent be amended to read “Minister for Immigration & Multicultural Affairs”.
The application is dismissed.
The applicant pay the first respondent's costs set in the amount of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3699 of 2005

SZHVV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised)

This is an application filed in this Court on 15 December 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 31 October 2005 and handed down on
22 November 2005 affirming the decision of a delegate of the respondent Minister made on 27 April 2005 to refuse a protection visa to the applicant.
The applicant is a citizen of The People's Republic of China who came to Australia on 13 March 2005 and sought protection in Australia on the basis that he claimed to have suffered persecution because of his membership and involvement with the Chinese Democratic Party.
He claimed to have organised, and been involved in, a number of demonstrations and speeches and that he had been detained by police and tortured. He also claimed police searched his home in order to obtain evidence to prosecute him. Sometime later when he operated a restaurant, a group of people came to his restaurant and “made trouble” for him because he had joined the Chinese Democratic Party, and had attended demonstrations in the past. His claim was that he would be persecuted on his return to China for the reason of his membership, and activities on behalf of, this party. The applicant’s claims are set out in his application for a protection visa (Supplementary Court Book (“SCB”) 1 to SCB 26), and in particular in a statement at SCB 19.
The applicant attended a hearing before the Tribunal on 31 August and
1 September 2005. The Tribunal's account of what occurred at the hearing, including the applicant’s claims, is reproduced at Court Book (“CB”) 21 to CB 27. This account is unchallenged by any other evidence before the Court now.
The Tribunal's “Findings and Reasons” are set out in its decision record and are reproduced at CB 28.7 to CB 30. The Tribunal found:
1)That the applicant’s claims were entirely dependent “upon an acceptance of him as a credible witness” (CB 29.4).
2)The applicant was not a credible witness in relation to key aspects of his claims (CB 29.4). It gave reasons for this, in particular in relation to his claim of suffering persecution because of involvement with the Chinese Democratic Party (CB 30.5).
3)The applicant's evidence at the hearing to be “not impressive”, at times “implausible”, “vague”, “unconvincing” and “contradictory”, and it gave its reasons as to its conclusion that the applicant was not a credible witness (CB 29.6 to CB 30.4).
4)That it rejected the applicant's claim that he was a member of, or involved in, the Chinese Democratic Party (CB 30.5).
5)It did not accept therefore that the applicant had suffered any serious harm in the past and noted that there was no credible evidence on which it could find that the applicant stood at risk of serious harm if he were to return to China (CB 30.8).
On this basis, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Refugees Convention reason if he were to return to China.
The applicant filed an amended application on 29 May 2006 which asserts one ground of review:
“The Tribunal failed to carry out its statutory duty.”
The particulars, which appear more in the nature of submissions, assert that the Tribunal failed to comply with s.424A of the Migration Act 1958 (“the Act”) and claim that information given by the applicant to the first respondent as a part of his application for a protection visa should have been given to the applicant in compliance with the High Court decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (“SAAP”) and the Full Federal Court decision in Al Shamryv Minister for Immigration & Multicultural Affairs [2000] FCA 1679 (“Al Shamry”).
I also note that the applicant had filed in this Court an affidavit made on 14 December 2005, and given that I had an unrepresented applicant before me, I also considered whether the matters asserted in that affidavit could, separately, be said to give rise to any ground of review that may assist the applicant. The applicant, in that affidavit, asserted the following:
“1.The Tribunal did not believe that I was a member of or involved in the Democratic Party. However, the Tribunal could not provide any evidence to prove that.
There is not logical or rational foundation to support the decision of RRT.
2.RRT failed to consider my claims. RRT made the decision based on assumption, not evidence. I am a member of Democratic Party.”
The applicant appeared unrepresented before me on 20 September 2006 (the date on which his matter had been previously set down for hearing). He stated that he had not received the respondent’s written submissions, and wanted an opportunity to consider them. I took this to be a request for an adjournment. I accepted documents tendered by the respondent’s representative, which I subsequently marked as Respondent's Exhibit 1 (“RE 1”) and Respondent's Exhibit 2 (“RE 2”), being letters (dated 12 September 2006 and 20 September 2006) addressed to, and sent to, the applicant enclosing the written submissions.
However, in the circumstances, and particularly given that the date of the respondent’s letter (RE 2) to the applicant was 20 September 2006, I accepted the applicant's submission that he had not received the document, but particularly that he had not had a proper opportunity to consider the contents. On that basis I adjourned the matter for final hearing until today [27 September 2006] to enable the applicant to properly consider the respondent's written submissions.
At the hearing today the applicant again appeared unrepresented, although in that regard I note that the applicant, at the time of the first Court date in this matter, applied for access to the Court's Legal Advice Scheme and was referred to a lawyer on the panel of that scheme.

The applicant was assisted by an interpreter in the Mandarin language. Ms. Jolley appeared for the respondents.
I treated the matters asserted in the applicant's affidavit as complaints about the Tribunal decision. In all therefore the applicant's complaints appear to be:
1)A failure by the Tribunal to carry out its statutory duty with particular reference to a breach of s.424A of the Act.
2)The Tribunal was not entitled to disbelieve his claim that he was a member of, or involved in, the Democratic Party.
3)The Tribunal did not provide any evidence to support its finding.
4)There was no logical or rational foundation to support the Tribunal's decision.
5)The Tribunal did not consider his claims.
At the hearing today the applicant made a number of complaints about the Tribunal’s decision.
1)That the Tribunal's conclusion in relation to his passport (I saw this as a reference to the applicant's capacity to obtain a passport and to exit China with it) and that he departed China unhindered by the authorities, was not a “correct” conclusion.
2)The applicant took issue with the Tribunal's finding that he was not a member of the Democratic Party, and said that there was no evidence before the Tribunal that he was not a member of this party.
3)The applicant pressed that there was a breach of s.424A of the Act, but appeared to characterise this breach as a failure by the Tribunal to inform him of its reasons for refusing his claims before making its decision. He also claimed that he lost an opportunity for a “fair assessment” as a result.
4)While the applicant also made a general assertion of a breach of the Act he was not able to provide any particulars whatsoever.
The relevant statutory regime in relation to protection visas as set out in ss.65 and 36(2) of the Act is that a decision maker, in the case before me the Tribunal, needs to be satisfied that, in effect, the applicant meets the definition of refugee as set out in Article 1A(2) of the Refugees Convention. For the applicant's benefit, I note that if an applicant can satisfy the Tribunal that he or she meets the definition then a protection visa must be granted. Conversely, if the Tribunal cannot reach the requisite level of satisfaction then the protection visa is not granted.
In any application it is for the applicant to put forward sufficient information before the Tribunal so as to enable the Tribunal to establish the relevant facts, and then whether the statutory elements are made out: see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 579 (“Guo”). It is not, as the applicant appears to put forward now, that it is up to the Tribunal to “disprove” that the applicant did not meet the requisite definition of a refugee.
In the case before me it is clear that the Tribunal (CB 28.8) was aware of its responsibility that an assessment of credibility should be approached with caution. The Tribunal in its “Findings and Reasons” noted that “proof” of persecution in cases involving protection visas can be a matter of some complexity and addressed its mind clearly to the relevant issues in determining the critical question arising out of the applicant's circumstances. In this regard I note, in particular, that the Tribunal understood the leeway, or liberal attitude, that needs to be given by a Tribunal, and in this regard it made reference to Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 124 ALR 265 (“Randhawa”).
But it is also the case that the merits of any claim to protection, including matters going to the weight to be given to claims or evidence and the credibility that is attached to these claims, or evidence, is for the Tribunal to determine (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). Further, as the Tribunal itself noted at CB 29.1, the Tribunal does not have to possess evidence rebutting the claims, before finding that a particular assertion is not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347). Nor, as the Tribunal noted at CB 29.2, is the Tribunal required to accept uncritically any, or even all, of the claims made by an applicant (see Beaumont J. in Randhawa and Guo).
In relation therefore to the applicant's complaint that the Tribunal did not believe that he was a member of, or involved in, the Democratic Party, it is a matter for the Tribunal to make such findings of fact. Findings of fact, including findings of credibility, are matters for the Tribunal “par excellence” (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1). The Tribunal does not need to provide any evidence to disprove “its finding” in the sense put forward.
The applicant makes an assertion that there was no logical or rational foundation to support the Tribunal's decision. Clearly, in the case before me, even if such a ground of review was available to the applicant, the Tribunal's decision does not reveal any failure of logic, or any lack of rational foundation to its ultimate conclusion. Simply, the applicant was given the opportunity to put forward his case.
The Tribunal, after considering the applicant’s evidence provided at a hearing before it, did not believe the applicant. This was clearly a finding of a lack of credibility for which the Tribunal gave reasons which were essentially that the applicant’s evidence contained inconsistencies, was “not impressive” and at times was “implausible”, “vague”, “unconvincing” and “contradictory”. The Tribunal set out in its decision record why it found this to be the case. I cannot see that any such complaint can succeed. For the Court to proceed further would involve the Court in impermissible merits review.
Similarly, the applicant’s complaint that the Tribunal failed to consider his claims is not made out. This conclusion also relies on an assertion that the Tribunal's decision was based on an assumption and not evidence. The Tribunal, by way of its decision record, set out its consideration of the applicant’s claims. I cannot see that any claims were not identified and dealt with. Simply, the Tribunal did not believe the applicant. In the absence of anything else the applicant’s complaint that the Tribunal did not “consider” his claims really appears to be an assertion that the Tribunal did not accept his claims. For the reasons referred to above this complaint therefore does not succeed.
I cannot see any error in how the Tribunal approached its task in this regard. The applicant's assertion now that he is a member of the Democratic Party does not in all circumstances rise above a request for this Court to engage in impermissible merits review.
In relation to the sole ground contained in the amended application, that is, that the Tribunal failed to carry out its statutory duty, the particulars to this ground assert that this failure of statutory duty was in relation to s.424A of the Act. The applicant has not provided any further specificity to the claim. He has not stated which information the Tribunal can be said to have not provided to him pursuant to s.424A(1), other than a general reference to such information extending to include information given by the applicant to the first respondent as part of his application for a visa. I cannot see that any such obligation existed on the Tribunal in the circumstances of the case before me.
To the extent that the Tribunal relied on independent country information, as for example in relation to the Democratic Party, such information clearly falls within the exception provided in s.424A(3)(a) from the obligation to put such information to the applicant pursuant to s.424A(1) (see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92).
In relation to the evidence provided by the applicant at the hearing before the Tribunal, this is information that falls within the exception contained in s.424A(3)(b) from the obligations imposed by s.424A(1). What the applicant said at the hearing was clearly given to the Tribunal for the purposes of the review.
It is a part of the reason for its decision that the Tribunal found that the applicant departed China unhindered by the authorities (CB 30.4).
This was one element leading to the conclusion that the claims lacked credibility. To the extent that such a finding was based upon, in part, the applicant’s passport, then this is such as to bring the information within s.424A(3)(b), excluding the obligations in s.424A(1).
The applicant's amended application makes reference to SAAP and Al Shamry. Even in the context of the illumination provided by SZEEUv Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 (“SZEEU”) as to what constitutes information for the purposes of s.424A I cannot see that the Tribunal relied on any information which carried with it an obligation to be put to the applicant in the manner set out in s.424A(2). I cannot see that the Tribunal’s decision, even in part, relied on information put only to the first respondent’s Department and not then subsequently put to the Tribunal. With these authorities firmly in mind it is clear that the Tribunal's decision turned on information, including country information, and information provided by the applicant at the hearing, which the Tribunal found to be unreliable. For the sake of completeness, and also bearing in mind what the applicant put at the hearing before me today, the Tribunal is not required to provide to the applicant with an opportunity, in writing, to comment on its thought processes, even any adverse thought processes, pursuant to the current statutory and applicable statutory regime. See SZEEU per Allsop J. at [206]:
“Information does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: Tin at [54], Paul at [95] and VAF at [24]. In this respect, it is relevant to recall the root of the word ‘information’: that of which one has been told or apprised, or informed. The distinction can become fine: Paul at [95]. It is a distinction, nevertheless, to be maintained. Also, the fact that appraisal, thought processes and determination are not information does not mean they are not relevant to the operation of s 424A. The thought processes of the Tribunal may reveal the relevance of information for s 424A(1)(b) and may assist in understanding what the Tribunal must say or do to comply with s 424A(1)(a), (b) or (c).”
I should note that s.442B of the Act, which became operational on

4 July 2002, clearly applies to the circumstances of this case, and with reference to Division 4 of Part 7 of the Act makes the matters dealt with in that division, the exhaustive statement of the requirements of the natural justice hearing rule. To the extent therefore that the applicant before me today complains of some unfairness in what the Tribunal has done then the exhaustive statement in this regard is contained, with particular reference and relevance, in s.424A of the Act (Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61). I note of course that the applicant was given the opportunity of a hearing before the Tribunal pursuant to s.425 of the Act. An opportunity which he exercised.
But even in the context of procedural fairness at general law, on the material before me, the applicant put forward his claims, and the Tribunal provided the applicant with the opportunity of explaining and enhancing these claims at a hearing. The only record before the Court of what occurred at the hearing is what appears to be a comprehensive report provided by the Tribunal in its decision record. This reveals that the applicant was given every opportunity to put forward and to support his claims. Simply, the Tribunal did not believe the applicant's claims for the reasons that it clearly gives. I should just also note that the Tribunal's account also shows that it took the opportunity to put some of the inconsistencies in the applicant’s evidence to him, and also by way of suggestion, put to the applicant the adverse view that the Tribunal appeared to be taking in relation to what the applicant was saying (with particular reference to CB 26).

In relation to what the applicant then has specifically put before the Court today, I have dealt already with the issue of the applicant's passport, and his complaint that the Tribunal's subsequent conclusion was “not correct”. Clearly, as Ms. Jolley submitted, the Tribunal relied on independent country information in relation to this finding and as I have already said, in relation to the passport itself, it was provided by the applicant to the Tribunal. As such no error can be discerned from that particular complaint. I have already dealt with the applicant's complaint about the Tribunal's alleged lack of evidence in saying that he was not a member of the Democratic Party, and in detail with the applicant's complaint about s.424A. Further, I have considered the applicant's complaint before me today that the Tribunal did not “inform” him of the reasons for its decision before making its decision, and that he therefore lost the opportunity for a fair assessment.

The applicant's general complaint about a breach of the Act, again, as Ms. Jolley submitted, contained no particularity whatsoever beyond the reference to s.424A. I accept Ms. Jolley's submissions that the Tribunal complied with its obligations as set out in Division 4 of Part 7 of the Act in this regard. I note also that there was no obligation on the Tribunal to send any notice to the applicant pursuant to s.424 of the Act. Clearly the Tribunal has discretion pursuant to this section and it is not mandatory for the Tribunal to give the applicant any opportunity to provide any further information.
In all therefore, it is clear that the applicant was not able to convince the Tribunal of the creditworthiness of many of his claims.
The Tribunal did not believe key aspects of his claims, and this was the basis for its being unable to reach the requisite level of satisfaction such as to find that the applicant had a well founded fear of persecution for a Refugees Convention reason if he were to return to China.
I cannot see any error, let alone jurisdictional error, in what the Tribunal has done. This application is dismissed.

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

Associate:

Date: 24 October 2006