SZHYO v Minister for Immigration

[2006] FMCA 895

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHYO v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 895

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China due to her practise of Falun Gong – whether RRT breached s.424A of the Migration Act considered.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.424A

SZEEU v Minister for Immigration [2006] FCAFC 2
SZHMU v Minister for Immigration [2006] FMCA 495
VAF v Minister for Immigration (2004) 206 ALR 471

Applicant: SZHYO

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3825 of 2005

Judgment of: Driver FM

Hearing date: 21 June 2006

Delivered at: Sydney

Delivered on: 21 June 2006

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Phillips Fox

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3825 of 2005

SZHYO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) handed down on 6 December 2005.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from China and had made claims of persecution based upon her practice of Falun Gong.  I adopt as background for the purposes of this judgment the following from paragraphs 2 and 3 of the Minister’s written submissions filed on 14 June 2006:

   The applicant, a female national of China, arrived in Australia on 8 May 2005 and applied for a protection visa on 13 May 2005.  That application was refused by a delegate on 21 July 2005 and the applicant applied to the RRT to review the delegate’s decision on 22 August 2005.  The applicant gave evidence before the RRT on 26 October 2005.

   The applicant claimed to be an adherent to Falun Gong and to have a fear of persecution in China by reason of that involvement.  The RRT referred her claims at evidence at court book, pages 65-71 and, at court book, pages 73-77, set out the findings and reasons for its decision.  The RRT was not satisfied by what the applicant put forward that she met the criteria for the grant of a visa. 

2. These proceedings began with an application for judicial review filed on 22 December 2005. Clearly that application was filed within time. The applicant relies on an amended application filed on 19 April 2006. In that application the applicant asserts a breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). Although the applicant gives particulars, most are in the nature of submissions as to the operation of s.424A. Significantly, however, the amended application asserts that the RRT based its findings on information or lack of information contained in the applicant’s protection visa application which should have been disclosed.

3. I conducted a hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) on 1 May 2006. At that time I formed the view that the amended application disclosed an arguable case of a breach of s.424A in three respects. The first was that the RRT decision dealt with the applicant’s claim of having been detained for 12 days, which was contained in her protection visa application. This claim was rejected by the RRT. Secondly, in its decisions and reasons reproduced on page 75 of the court book, the presiding member referred to the “initial generality, the various contradictions” of the information provided by the applicant. It was not clear to me whether the presiding member was including in that statement a reference to information contained in the protection visa application. Thirdly, I was struck by the presiding member’s statement on page 70 of the court book that she had said to the applicant that she was obliged to put adverse information to her so that the applicant would have a chance to respond. It occurred to me that by that statement the presiding member might have seen an obligation to comply with s.424A, which had plainly not been met as no invitation to comment pursuant to s.424A had been issued.

4. These issues are dealt with in the Minister’s written submissions filed on 14 June 2006. The applicant has not made any written submissions and her oral submissions were not directed to the issue of the asserted breach of s.424A. Since the Minister’s written submissions were prepared, an affidavit of Kimberley Karen Rose annexing a transcript of the hearing conducted before the RRT has been prepared. I accepted that affidavit and the annexed transcript together with the court book as evidence for the purposes of today’s hearing. The transcript was provided rather late in the proceedings but the applicant has not asserted any prejudice.

5. The transcript discloses that there was an extensive and perhaps somewhat discursive discussion between the presiding member and the applicant about her claims.  Various elements of the applicant’s claims are discussed at various points in the transcript.  The presiding member has adopted the approach of returning at various points to the same issue in order to check or clarify details.  The transcript satisfies me that there was nothing in the applicant’s protection visa claim of having been detained for 12 days, which was determinative of the outcome of her review application.    That claim simply provided the starting point for questioning of the applicant at the hearing.  (See the observations by Allsop J in SZEEU v Minister for Immigration [2006] FCAFC 2 at paragraph 227.)

6. The questioning of the applicant at the hearing about her claim of detention and release created in the mind of the presiding member a concern about the credibility of that claim.  In particular, the presiding member had difficulty accepting that the applicant could be detained for 12 days and then released with no adverse consequences.  What was determinative in giving rise to that credibility concern was the evidence given the applicant at the hearing.  I otherwise agree with and adopt for the purposes of this judgment paragraphs 6 and 7 of the Minister’s written submissions:

   The RRT was doing no more than evaluating a claim that had been made by the applicant.  The RRT was not relying upon the fact that she said that she was detained for twelve days as part of the reason for its decision.  It simply was not satisfied that she had been detained for twelve days.  This is not to use “information” (here, the “information” that she was detained for twelve days) as part of the reason for the RRT’s decision.  It is accordingly not a matter which, applying the principles in SZEEU v Minister for Immigration [2006] FCAFC 2, gave rise to an obligation to issue an invitation under s.424A(1).

   Adopting the language of Smith FM in SZHMU v Minister for Immigration [2006] FMCA 495 at [20], “the Tribunal’s reference to the contents of the applicant’s visa application shows…at all times no more than an assessment of the merits of the claims of the applicant”. That assessment falls within the third proposition in paragraph [24] of VAF v Minister for Immigration (2004) 206 ALR 471, which was accepted in SZEEU.  See SZEEU at [18]-[20] per Moore J, and, more particularly, at [205]-[207] per Allsop J with whom Weinberg J relevantly agreed.

7. The transcript does not answer with certainty the question of whether the RRT’s reference in its decision to the initial generality of claims included a reference to the applicant’s protection visa claims.  The transcript does answer with certainty the question of what was meant by the reference to contradictions.  The presiding member had no concern about contradictions between the applicant’s protection visa claims and her evidence at the hearing.  That is hardly surprising as the applicant’s protection visa claims were very brief and general.

8. The applicant was, of course, invited to a hearing before the RRT because the RRT was not satisfied with the information she had at that stage provided. To the extent that the inadequacy of that material remained determinative, there was no obligation of disclosure under s.424A. Further, the transcript does disclose that the presiding member had some concern about the generality of the applicant’s initial oral evidence. This is to some extent corroborated by what the presiding member says on page 67 of the court book, where the presiding member refers to her attempt to clarify general statements made by the applicant in her oral evidence and her further attempt to place them within a time frame.

9. I find that to the extent that the generality of the applicant’s protection visa claims played any part in the ultimate outcome of the review application, there was no disclosure obligation under s.424A. Apart from what I have already said, I agree with and adopt for the purposes of this judgment paragraph 9 of the Minister’s written submissions:

   Moreover, the term “information” does not extend to the RRT’s evaluation of what is put forward.  See again VAF AT [24].  To describe what has been claimed by an applicant (at any stage) as general, or initially general, does not go beyond an evaluation in the sense there discussed.  Alternatively, and more directly, what the RRT said may be seen as the identification of “gaps, defects or lack of detail or specificity in evidence” (italics added), as described in VAF at [24] and in SZEEU by Allsop J at [207].

10. The third issue is what the presiding member meant when she said on page 70 of the court book that she had told the applicant that the RRT was obliged to put adverse information to her so that she would have a chance to respond.  The transcript discloses that something along these lines was indeed said to the applicant at the hearing but unfortunately the presiding member has taken that statement out of context when she came to prepare her reasons.  The relevant statement appears on page 37 of the transcript at lines 33 to 35.

11. It is clear to me that the presiding member had her mind firmly fixed on an obligation which might arise under s.424A if she had regard to evidence given by the applicant’s husband who had made a separate protection visa application. The presiding member’s statement in fact had nothing to do with the issues discussed by the presiding member on page 70 of the court book. Further, as is made clear by the presiding member on page 77 of the court book, she did not have any regard to the applicant’s husband’s claims.

12. I conclude that there was no information which was ultimately determinative of the outcome of the review application which required disclosure under s.424A.

13. It is a curious factor in this matter that the applicant and her husband made separate protection visa applications.  The transcript discloses that the applicant expressed surprise when told by the presiding member that she and her husband might have made a single application.  She was told by the presiding member that at that stage, the time of the hearing, it was too late for there to be a single application.  The applicant told me today that no decision on her husband’s application has yet been made by the RRT.  Depending upon what the nature of the applicant’s husband’s claims are and the outcome of his review application, there may be some future basis for the present applicant to request Ministerial intervention.  That is, however, beyond the scope of this proceeding.  The applicant has not asserted any jurisdictional error arising from the fact that the separate applications by her and her husband have been and are still being dealt with separately. 

14. I find that there is no jurisdictional error in the decision of the RRT.  The decision is therefore a privative clause decision. 

15. I will dismiss the application.

16. Costs should follow the event in this case. Scale costs after a final hearing in the migration jurisdiction under the Federal Magistrates Court Rules are $5,000. However, where the Minister’s costs significantly exceed that amount, it is open to the Minister to seek to have costs fixed in a larger amount. I am told that the Minister’s actual costs in this matter are in the order of $9,280 with additional disbursements of approximately $330. The Minister seeks an order for costs fixed in the amount of $7,000. The applicant did not wish to be heard on costs.

17. It would be appropriate to make an award of costs on a party and party basis for approximately two-thirds of the Minister’s costs and disbursements.  I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, which I fix in the sum of $6,000.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  23 June 2006