SZHXW v Minister for Immigration
[2006] FMCA 1766
•21 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHXW v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1766 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – Application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of People’s Republic of China claiming fear of persecution for reason of imputed political opinion – whether Tribunal breached Migration Act 1958 (Cth) ss.424, 424A or 425 – credibility – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424, 424A, 425 |
| M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 SZHIB v Minister for Immigration and Multicultural Affairs [2006] FCA 611 SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 |
| Applicant: | SZHXW |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3789 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 21 November 2006 |
| Date of last submission: | 21 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 21 November 2006 |
REPRESENTATION
| Applicant: | In person |
| Solicitor for the Respondent: | Ms Hooper |
| Solicitor for the Respondent: | Phillips Fox |
ORDERS
The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,600.00.
I allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3789 of 2005
| SZHXW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision by the Refugee Review Tribunal that affirmed a decision of a delegate of the Minister not to grant the Applicant a protection visa. The decision was signed on 25th October and handed down on 17th November 2005.
The Applicant seeks orders including:
a)a declaration that the decision was invalid and contrary to law;
b)an order in the nature of certiorari setting aside the Tribunal decision; and
c)an order in the nature of mandamus remitting the matter to the Refugee Review Tribunal for determination in accordance with law.
Background
The background to this matter is that the Applicant is a citizen of the People’s Republic of China. He comes from Fujian Province, where he was a farmer. He arrived in Australia on 19th February 2005 and applied for a Protection (Class XA) visa on 31st March 2005. That visa was refused, and so on 28th June 2005, the Applicant applied to the Refugee Review Tribunal for a review of that decision.
The Applicant, with the assistance of his migration agent, prepared an application for review, which was lodged at the Sydney Registry of the Tribunal on 26th July 2005. The application was accompanied by a letter which set out that the Applicant had carefully considered the decision given by the delegate for the Minister and did not accept the decision to refuse the application for a visa.
In that letter he referred to the definition of the term “refugee” and stated that the issue was whether his fear of persecution on his return to the People’s Republic of China was well founded. He claimed that he had a well-founded fear of persecution. He set out his view that the delegate, before making a decision, should have arranged an interview with him so that he could have had an opportunity to explain in detail about his claims, including his relationship with a man named Mr Zhao. He went on to say:
Please refer to the statutory declaration attached to my primary application. As a matter of fact I think that I have provided detailed claims in my primary application.
He expressed doubts that the delegate had considered his claims carefully and set out a number of factual matters about his claim.
The Tribunal wrote to the Applicant on 6th September 2005 explaining that it had considered the material before it in relation to his application but it was unable to make a decision in his favour on that information alone. The Tribunal invited the Applicant to attend a hearing of the Tribunal where he could give evidence and provide further evidence which was scheduled for 9:00am on Friday 14th October 2005.
The Applicant did attend that hearing and did give oral evidence.
The Refugee Review Tribunal’s Hearing
The Tribunal asked him a number of questions about his application, and discussions took place about the material contained in the Applicant’s statutory declaration, which was attached to his application for a protection visa. The Applicant gave evidence about his claim, which is that he and two other men had begun to run a farm to produce shellfish for the market. The particular type of shellfish is known as ‘Cheng’, and they would commence breeding the shellfish in February of the Chinese calendar each year and harvest them around July.
They started that business in about 1998 and soon became very successful.Unfortunately, the Applicant said that around the year 2002 a Mr Jiang, whose family had strong political connections, set up a pig farm in an old soy sauce factory not far from the neighbouring cheng farms.
The pig farm caused serious pollution to the environment generally and to the cheng farms in particular. The excrement from the pigs was particularly harmful and many of the cheng were polluted.
The Applicant and his colleagues eventually complained. Their protests fell on deaf ears, unfortunately.In about March 2004 a man came to the Applicant’s cheng farm and obtained employment. He gave his name as Zhao, which I understand to be a very common name in China. He was a good worker, and the Applicant and Mr Zhao established a close working relationship. Eventually Mr Zhao confided in the Applicant that he was not who he said he was but was in fact a political dissident who was formerly a teacher in a university in Beijing. Mr Zhao had attracted adverse attention from the Public Security Bureau because of his involvement in an underground political organisation.
Eventually, at the urging of Mr Zhao, the Applicant and his two colleagues commenced demonstrations in order to persuade the Fujian provincial government to take action not only to heed their claims about the pollution of the cheng farms by Mr Jiang’s pig farms but also in support of wider human rights aims and in support of ridding the area of corruption and setting up a democratic government.
This activity attracted adverse attention from the PSB, and Mr Zhao was arrested. The Applicant says that he was betrayed by one of his own staff members, who had taken a bribe. The Applicant’s two colleagues were also detained by the PSB in Fuzhou. The Applicant went into hiding and left China with his own passport legally. Whilst there was a warrant out for his arrest he said that he was able to leave before the PSB was able to execute the warrant.The Tribunal asked the Applicant a number of questions about his account and about the Applicant’s earlier visit to Australia in October 2004. The Applicant visited Australia for about a month or less on a one-month visa and was thinking about buying cows. He did not proceed with that project.
The Tribunal’s Findings and Reasons
The Tribunal handed down its decision on 17th November 2005. A copy of the Tribunal decision record appears at pages 65 to 73 of the Court Book. In the decision record the Tribunal sets out virtually in full the Applicant’s statutory declaration submitted with his primary application for a visa.
The Tribunal gave a summary of the oral evidence, particularly of its questions of the applicant about his story. The Tribunal’s findings and reasons are set out on pages 72 and 73 of the Court Book. The Tribunal accepted that the Applicant was a citizen of China, based, no doubt, on production of his passport. The Tribunal, however, expressed serious doubts about the credibility of the Applicant’s account of his earlier visit to Australia and how he acquired a visa for Australia whilst he was allegedly in hiding from the PSB. It was described as lacking in credibility, and the Tribunal did not accept that evidence.
The Tribunal referred to the Applicant’s primary claim about the deleterious effect of a pig farm on the Applicant’s cheng farm and considered that the Applicant’s account of the cheng being polluted by pig waste was implausible and described another part of the Applicant’s evidence in these terms:
The idea of swilling the waste generated by 2000 to 3000 pigs down a small ditch into a river where the distance between the low and high tide marks is, according to the applicant, 2 to 3 kilometres, is imaginative, but quite impractical.[1]
[1] Court Book, p.72
The Tribunal expressed doubts about the credibility of the activities of Mr Zhao and expressed doubts about the Applicant’s account of events that had happened in the first two weeks of January 2005. The Tribunal stated its belief that the Applicant had “crowded too much into them to be believable”, referring to the first two weeks of January of that year. The Tribunal did not accept that the Applicant had hired a political dissident and did not accept that he was involved in the leadership of demonstrations against the pollution of his shellfish farm.
Accordingly the Tribunal did not accept that the Applicant faced a real chance of suffering harm amounting to persecution on return to China for reason of his real or imputed political opinion or any other Convention reason. The Tribunal found that the Applicant did not have a well-founded fear of persecution in China for a Convention reason and was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol. Therefore, the Tribunal found that the Applicant did not satisfy the criterion set out in sub-s.36(2) of the Act for a protection visa.
The Application for Judicial Review
The Applicant commenced these proceedings on 21st December 2005. He filed an amended application on 2nd May 2005 and described the decision of the Tribunal as absolutely incorrect. He set out four grounds in his application under the heading “Particulars”.
Particular 1 - The Tribunal decision relied on irrelevant materials, but ignored important issues.
In support of that ground the Applicant claimed that the cheng farm which he had run was very different from a normal fish farm or a normal farm for normal shellfish. He took issue with the Tribunal’s claim that it did not accept his claims that the cheng on his farm had been polluted by pig waste and reasserted his claim that he was targeted by the authorities in China since his two friends and colleagues had been arrested by the Public Security Bureau. In his oral submission to the Court the Applicant confirmed that he left China before his friends and colleagues were arrested and at that stage the warrant for his arrest was not operative.
The Applicant’s first ground is, unfortunately, no more than a challenge to the factual findings of the Tribunal. It is not the function of a Court conducting judicial review to rehear the case on its factual merits.
The Court does not have the jurisdiction to consider the factual evidence again and substitute its own decision for the decision of the Tribunal. What the Court must do is examine whether there is evidence upon which the Tribunal could have made its decision. It is not relevant whether or not the Court may have made a different decision on those same facts. In my view, there was evidence before the Tribunal that would entitle the Tribunal to arrive at the decision that it did. This ground must fail.
Particular 2 – The Tribunal used a wrong test to assess the Applicant’s credibility.
The second ground that the Applicant relies upon is that the Tribunal used a wrong test to assess his credibility. He sets out that the Tribunal did not have a basic knowledge about the special shellfish known as cheng and that the Tribunal failed to understand correctly his claims that his friend Mr Zhao had been betrayed by one of the Applicant’s own employees. He puts that it is quite common in the countryside in China, particularly in Fujian, that almost all villagers in one particular village are related in one way or another. This is in effect a challenge to the Tribunal’s factual findings.
A decision on credibility, and the Tribunal’s decision turned largely on its adverse credibility findings of the Applicant, is essentially a factual finding. Whilst the Tribunal must give its reasons in finding that the Applicant’s account is not credible, it is well established that the Tribunal does not have to go into the subset of those reasons. Credibility is essentially a matter for the administrative decision maker. Like other factual conclusions, provided there is evidence upon which the Tribunal could have made that finding, a Court conducting judicial review will not interfere.
That leaves grounds 3 and 4, both of which relate to a failure by the Tribunal, according to the Applicant, to comply with the statutory obligations.
Particular 3 – The Tribunal failed to comply with its obligations under s.424A(1) of the Act.
The first challenge set out in ground 3 alleges a failure to comply with the obligations under s.424A(1) of the Migration Act. There are two areas in which the Applicant claims a breach of s.424A. First, the Applicant said:
The Tribunal’s decision has, apparently, relied on incorrect information or misunderstandings mentioned above; and the Tribunal has also relied on some independent country information regarding to the passport, namely, I was able to leave my home country by using a passport with my own name.
Ms Hooper, solicitor, who appeared for the Respondent Minister, submitted that independent country information, not being specifically about the Applicant or another person, is excluded from the operation of s.424A(1) of the Migration Act because it comes within the exception set out in s.424A(3)(a) of the Act.
As to the other challenge under s.424A, the facts are a little bit more complex. The Applicant claims that the Tribunal relied on certain information which should have been put to him in such a way that the Tribunal ensured that the Applicant understood why it was relevant and invited the Applicant to comment on it. The Applicant says that the Tribunal did rely on information but did not do that.
What the solicitor for the Respondent Minister submits is that whilst there are three pieces of information that appear to have been taken either from the Applicant’s protection visa application in two cases, or from his passport itself in the other case, that this material all comes within the exception in s.424A(3)(b), which is material of the Applicant as provided to the Tribunal for the purpose of the application. The pieces of information are the date of the Applicant’s departure from China and the fact that he left China legally, appearing in the answers to the questions of the protection visa application.
What is submitted is that in his application to the Tribunal the Applicant republished his application for a protection visa to the Tribunal for the purpose of his application. The submission is that the protection visa application, the statutory declaration submitted with the protection visa application and the Applicant’s passport should be regarded as a whole because they are interdependent. Indeed there are references in the protection visa application to the Applicant’s statutory declaration, and they can be found at pages 17 through to 20 of the Court Book.
In fact, if the protection visa application were to be considered separately from the Applicant’s statutory declaration, it would contain no information at all in support of the Applicant’s claim for a visa.
To make any sense of the application for a protection visa one has to read it in conjunction with the statutory declaration. The passport too, it is submitted, should be seen as connected to the whole of the combined application.As I mentioned earlier, when the Applicant submitted his application for review to the Refugee Review Tribunal he attached to it a statement in which he took issue with the findings in the delegate’s decision and referred, albeit briefly, to material in his application, particularly relating to his relationship with Mr Zhao, who turned out to be a political dissident. It is submitted, and I believe correctly, that the letter to the Tribunal, by referring to the statutory declaration attached to the primary application and the primary application itself, republishes the material in those documents to the Tribunal so that that material must be considered as information provided by the Applicant to the Tribunal which therefore attracts the protection of s.424A(3)(b).
The solicitors for the Respondent refer to three decisions, two of which are appeal decisions from this Court. They are of course binding upon this Court. The other decision is a decision at first instance of Gray J in M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131, where his Honour found at [25] that:
Where the applicant had relied in writing upon the terms of his application for protection visa and his application to the Tribunal, the information provided to the Tribunal for the purposes of s.424A(3)(b) included the copy of the passport and all the information derived from it.
The other decisions to which I have been referred are SZHIB v Minister for Immigration and Multicultural Affairs [2006] FCA 611, which is an appeal not only from this Court but an appeal from an earlier decision of mine, and SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034. In SZHIB Young J, following the decisions in M55 v Minister for Immigration and Multicultural and Indigenous Affairs and also SZDMJ, had this to say:
There is, moreover, a second reason for rejecting the appellant’s arguments based on s.424A. In my opinion, if any of the material in the protection visa application was relied upon by the Tribunal as a basis for its findings concerning inconsistencies in the appellant’s evidence and its adverse finding on his credibility, that material was republished by the letter accompanying the application to the Tribunal. I have already referred to the content of that letter. The appellant’s letter incorporates, in my view, the substantive claims made in the appellant’s statutory declaration, which supported his application for a protection visa. It follows that the information in the protection visa application became information given by the appellant to the Tribunal within the meaning of sub-section (3)(b) of s.424A.
In my view, the decision in SZHIB is particularly apposite to the matter before me. If anything, in my view, the letter to the Tribunal in the case before me makes an even stronger reference to the statutory declaration and the other material in the Applicant’s application for a protection visa than was the case in SZHIB. I am, of course, bound to follow the decision in SZHIB, and I am satisfied that the material in the Applicant’s protection visa application, which should be read in conjunction with his statutory declaration and his passport, has been effectively republished and specifically republished to the Tribunal by the Applicant’s letter to the Tribunal accompanying his application for review of the delegate’s decision.
Thus I am satisfied that the information referred to is information that comes within the terms of sub-s.(3)(b) of s.424A and there is no breach of s.424A. I note that in that ground the Applicant refers not only to s.424A but also to s.424 of the Act, a point that does not appear to have been addressed in the Minister’s submissions. However, it appears to me that the reference to s.424 is anomalous in that there is no submission or no ground alleging any breach of s.424. The section appears to have been tacked onto s.424A in the amended application, but it does not of itself show any jurisdiction error nor is it even claimed there is any breach of s.424. I am satisfied that the third ground must fail.
Particular 4 – The Tribunal failed to comply with its obligation under s.425 of the Act.
The fourth ground is that the Tribunal failed to comply with its obligations under s.425 of the Migration Act. The particulars of this are as follows:
a. During the Tribunal’s hearing, the Tribunal denied my rights to give my oral evidences properly; and on many occasions, I was interrupted; or, I was not given sufficient time.
b. Moreover, during the Tribunal’s hearing, I was only allowed to “simply” answer those questions given by the Tribunal; and I was never allowed to provide any details.
c. During the Tribunal’s hearing, the Tribunal denied my rights to present my arguments relating to the issues arising in relation to the decision under review; and the Tribunal refused to make me understand what the actual issues would be and why those issues would be in relation to my application.
This ground is one that has been a feature of a number of applications to this Court over the previous 12 to 18 months. If it is an allegation that the hearing somehow miscarried because the Applicant was not able to present his evidence due to the actions or attitudes of the Tribunal, then there would be a need for evidence to support such an assertion. That evidence should be, at the very least, a transcript of the Tribunal hearing supported by an affidavit. There is no such evidence.
On the material before me, the Tribunal invited the Applicant to attend a hearing and gave him sufficient notice of that hearing. The Applicant attended the hearing and gave evidence with the assistance of an interpreter provided by the Tribunal. There is nothing to indicate that the Applicant’s evidence was unduly or unfairly truncated or that he was not given a chance to present his case.
Particular (c) in this ground, is an allegation that the Tribunal denied the Applicant’s rights to present his arguments relating to the issues in relation to the decision under review and refused to make him understand what the actual issues would be and why those issues would be in relation to his application. In effect this is a rehash of the s.424A argument, but it is based on a misconception. The misconception is that there is some obligation on the Tribunal to set out either its determinations or its thought processes or its reactions to the Applicant’s evidence in order to give the Applicant a chance to, in effect, talk the Tribunal out of any view that it may be forming.
There is no obligation on the Tribunal in s.425, or indeed in any other section of the Migration Act, to give the Applicant some form of running commentary on whether his evidence is sounding persuasive to the Tribunal. Indeed in many cases it may well be that the Tribunal needs to mull over and consider an Applicant’s evidence before making a decision one way or another. In other cases, the Tribunal’s disbelief of an applicant’s evidence would be so obvious that an applicant would be well and truly aware that his or her arguments were not being successful. Either way there is no requirement under s.425 for the Tribunal to act in the way that the Applicant submits. There is no breach of s.425 of the Act.
Conclusion
The Applicant has not made out any jurisdictional error. I am mindful of the fact that the Applicant is not legally represented. I have considered the material independently of the Applicant’s claims and of the Respondent’s submissions in order to ascertain whether any arguable case for any other form of jurisdictional error can be made out. I am unable to discern any other jurisdictional error. I am satisfied that there is no jurisdictional error.
Accordingly, the decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. As a privative clause decision it is final and conclusive and it is not subject to declarations certiorari or mandamus in any Court. It follows that the application must be dismissed.
There is an application for costs. The Applicant has been wholly unsuccessful in his claim, and in my view this is an appropriate case for a costs order. The amount sought is $3,600.00, which is well within the appropriate range. Against this the Applicant says that he does not have the funds to meet this. He works in a restaurant, but he only works two days a week. I see no reason to doubt what the Applicant tells me, and I accept the fact that he would not have ready access to the sum of $3,600.00. Whilst that is not a ground for not making an order for costs, it is a matter to be taken into account as far as time to pay is concerned, and I will allow time to pay.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 28 November 2006
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