SZHZJ v Minister for Immigration - [2007] FMCA 907

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHZJ v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 907

MIGRATION – Review of decision of RRT – whether Tribunal breached ss.424A or 425 Migration Act 1958.

Migration Act 1958, ss.424A, 425

SZBEL v Minister for Immigration [2007] 231 ALR 592
SZECF v Minister for Immigration [2005] FCA 1200
SBBS v Minister for Immigration [2002] 194 ALR 749
SCAA v Minister for Immigration [2002] FCA 668

Applicant:

SZHZJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 3854 of 2005

Judgment of:

Raphael FM

Hearing date:

30 May 2007

Date of last submission:

30 May 2007

Delivered at:

Sydney

Delivered on:

30 May 2007

REPRESENTATION

For the Applicant:

Applicant in person

Counsel for the Respondent:

Ms S McNaughton

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

Application dismissed.
Applicant to pay the first respondent’s costs assessed in the sum of $5,000.00.
The name of the first respondent be amended to read Minister for Immigration and Citizenship.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3854 of 2005

SZHZJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China. He arrived in Australia on 3 September 2003. On 15 September 2003 he applied to the Department of Immigration and Multicultural Affairs for a protection (Class XA) visa. The application was declined by a delegate of the Minister and the applicant applied for a review of that decision.
The Refugee Review Tribunal affirmed the delegate’s decision on 17 May 2004 and the applicant sought review of that decision.

On 3 August 2005 the original Tribunal decision was quashed by the Federal Magistrates Court and the matter was remitted to the Tribunal to be heard and determined according to law. On 21 September 2005 the applicant gave evidence to the Tribunal differently constituted. On 31 October 2005 the Tribunal determined to affirm the decision under review and handed that decision on 24 November 2005.
The grounds upon which the applicant claims to be a person to whom Australia owes protection obligations are found in a statutory declaration at [CB 28-33]. The applicant became involved in pro democracy groups having been influenced by a named person in about 1992. He claimed that he was responsible for disseminating overseas pro democracy materials. In June 2002 he was detained by the PSB and was subjected to physical and mental torture. He claimed to have been detained between 6 June and 31 August 2002 but was released after paying a substantial penalty. The applicant managed to obtain a passport and after he was released by the PSB remained active assisting another named person to take his place. In July 2003 that named person was arrested and because the applicant feared that his involvement would be revealed he made arrangements to leave the country.
In its decision record the Tribunal sets out in detail the applicant’s claims and the evidence that was put before the previous member. At [CB 110] it commences detailing what occurred at the hearing before the second Tribunal which appears to involve some detailed questioning of the applicant about his political beliefs, about the organisations to which he claimed to have belonged and the work which he did for them. During the course of the interview the Tribunal expressed to the applicant its concerns about some of his evidence. For example at [CB 113] the Tribunal states:
“The Tribunal put to the applicant that it seemed hard to believe and did not seem logical that a party would seek to get members before it was clear what its aims were.”
Similar expressions of concern can be found at [CB 114] and [117]. The Tribunal also indicated its view that the applicant’s responses were vague. At [CB 115] it says:
“The Tribunal questioned why the applicant seemed vague about how Mr [named] was arrested if the chairman told him that [the named person] was arrested.”
The findings and reasons of the Tribunal commence at [CB 121]. They are not overly long. At [CB 121] the Tribunal says:
“The Tribunal found the applicant’s evidence about when he found out about the CYLP extremely evasive and confused. This was a simple matter yet it took much questioning by the Tribunal to elicit that information. It did not appear that the applicant was confused about what he was being asked. Rather it seemed that he was intentionally attempting to avoid answering the question. This suggests that he was not responding truthfully.”
In the paragraphs that follow the Tribunal makes other criticisms of the applicant’s testimony and explains why on the basis of independent country information the evidence which he gave would not appear to be truthful. Finally the Tribunal states at [CB 123]:
“Taking into account the above matters cumulatively, the Tribunal has concluded that the applicant and his claims are not credible. It thus finds that the applicant was never a member of the CYLP or distributed any anti-government materials. Thus, even if the party does exist and it has been classified as
anti-government and some of its members have come to the attention of [the] Chinese authorities it finds that this poses no threat of harm to the applicant. Further, having found that he was not a member of the CYLP it follows that the Tribunal does not accept that he was interrogated, detained, his house searched or his wife questioned because of his membership of that party or because he distributed any anti-government material in China.
Therefore, the Tribunal concludes that the applicant does not have a well-founded fear of persecution in China for any Convention reason.”
On 27 April 2006 the applicant provided an amended application which sets out the grounds upon which he believes the Tribunal fell into jurisdictional error in the manner in which it came to its decision. The first point that the applicant raises at paragraph 2 is:
“The Tribunal failed to comply with its obligations under s.424A(1) of the Act:
a. In the Tribunal’s decision, the Tribunal has relied on some pieces of information mainly arising from the Tribunal’s hearing, such as: [information there set out];
b. However, in any time before the Tribunal made its decision, the Tribunal has never ever given me those pieces of the information.
c. As a matter of fact, the Tribunal refused to provide me particulars of the information that it had used to determine my applications; refused to ensure me to understand that they would be directly in relation to my application; and particularly refused to give me a chance to make my comment on them.”
The information which the applicant refers to is all the conclusions that the Tribunal had come to upon the hearing the applicant’s evidence and testing it. It would appear that whoever prepared the amended application for the applicant was trying to bring these matters within the dicta of the High Court in SZBEL v Minister for Immigration [2007] 231 ALR 592 at [29-43] where the court explains procedural fairness in the context of the operation of s.425(1) of the Migration Act 1958 (the “Act”). At [47] the court says:
“There may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant in so many words that he or she is lying, that he or she may not be accepted as a witness of truth or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not to adopt a position of a contradictor.”
It seems to me having regard to the whole of the Tribunal’s decision record that the Tribunal did fall fairly and squarely within the examples given by the High Court and set out above. The Tribunal made it clear to the applicant that it had concerns about the story he was telling and then based its decision on the finding which was open to it “par excellence” that the story lacked veracity.
It is also now well established that the grounds and reasons of the Tribunal for not accepting the evidence of an applicant do not themselves constitute information for the purposes of s.424A. SZECF v Minister for Immigration [2005] FCA 1200.
The second matter raised by the applicant was that the Tribunal had made its decision with bias. He referred to some statements made by the Tribunal about the manner in which he gave evidence and the fact that some of his replies appeared rehearsed and gave the impression that he was repeating information rather than responding spontaneously. As Ms McNaughton points out in her helpful written submissions it is well established that an allegation of bias either actual or apprehended is a serious matter which must be distinctly made and clearly proved; SBBS v Minister for Immigration (2002) 194 ALR 749. In this case the applicant has provided no more than extracts from the Tribunal’s own reasons for decision which makes the task of a court finding bias even more difficult; SCAA v Minister for Immigration [2002] FCA 668. I am quite satisfied that the Tribunal’s expression of its views as to the applicant’s credibility constitute a reasoned summation of that evidence and a conclusion capable of being drawn from the facts expressed.
The applicant also submitted that there was a direct failure to comply with s.425 by refusing to make clear what the issues were in relation to his application nor did it allow him to understand what particulars of those pieces of information the Tribunal intended to use as a reason or part of the reason for coming to its decision. I believe I have dealt with these matters earlier in these reasons where I made reference to the pieces of information that the applicant set out under his submission in relation to s.424A because in my view the information referred to there appears to be the same as the issues which are not particularised raised under the s.425 submissions. I would also point out that I accept the submission made by Ms McNaughton in regard to s.424A that the information upon which the applicant relies was information given by him in response to questions by the Tribunal or in his evidence generally and would therefore fall within s.424A(3)(b) of the Act.
The applicant also argues that the Tribunal made its decision mainly based on its subjective bias but not objective facts. Regrettably, the applicant did not particularise this allegation either in his amended application or in his oral submissions but it seems to be a general complaint that his evidence was not accepted. That is of course seeking impermissible merits review.
Finally, there is a general statement by the applicant that the Tribunal definitely exceeded its powers and committed jurisdictional errors because it ignored important facts and made erroneous findings. Again, those facts and those findings are not particularised and without such particulars it is impossible to see whether or not the facts are jurisdictional facts.
Having considered the reasons for decision as a whole I am satisfied that the second Tribunal did not fall into jurisdictional error either as suggested by the applicant or at all and I dismiss the application.
I order that the applicant pay the respondent’s costs which I assess in the sum of $5,000. I also order that the reference to the name of the first respondent be amended to read Minister for Immigration and Citizenship.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: