SZIAQ v Minister for Immigration
[2007] FMCA 2021
•6 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIAQ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2021 |
| MIGRATION – Whether applicant misled by information in a s.424A letter – Tribunal not to mislead an applicant. |
| Migration Act 1958 (Cth), ss.424A, 474 |
| Kanda v Government of Malaya [1962] AC 322 Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 176 ALR 219 SZAGI & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 484 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60 Minister for Immigration and Multicultural and Indigenous Affairs v Applicant M1031/03 [2005] FCA 388 Minister for Immigration and Multicultural and Indigenous Affairs v SGJB [2003] FCAFC 290 Applicant A200 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 547 Chen Xin He v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, RD Nicholson J, 23 November 1995, unreported) |
| Applicant: | SZIAQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1772 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 20 November 2007 |
| Date of last submission: | 20 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 6 December 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr I.G. Archibald |
| Solicitors for the Applicant: | Ms M. Byers |
| Counsel for the Respondents: | Mr A.J. McInerney |
| Solicitors for the Respondents: | Mr J. Pinder of DLA Phillips Fox |
ORDERS
The application and amended application are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1772 of 2007
| SZIAQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 3 May 2007, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.
Background
On 24 March 2005 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application he claimed to fear persecution in China on the basis of his Falun Gong practice (Court Book “CB” 28).
The application was refused by a delegate of the first respondent on 14 April 2005 (CB 91) and by the Tribunal on review on 23 November 2005 (CB 184). The applicant then sought judicial review with this Court, and on 20 November 2006, Scarlett FM remitted the matter to the Tribunal by consent for reconsideration according to law (CB 209). By decision signed on 3 May 2007, the second Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa (CB 254).
The matter is now before this Court pursuant to an application for judicial review filed on 5 June 2007, and an amended application filed in Court, by leave, on 20 November 2007.
The applicant abandoned the grounds in the application during the hearing (Transcript 2, line 19) and relies only on the grounds in the amended application.
Issues for determination
The issues before the Court are as follows:
·Whether the applicant was misled by the information in the 424A letter;
·The duty of the Tribunal not to mislead the applicant.
The application
In his amended application, the applicant set out the following grounds:
(1)The Tribunal fell into jurisdictional error by reason of a breach of procedural fairness.
Particulars
(a)On 19 March 2007 the Tribunal sent the applicant a letter under s.424A of the Migration Act 1958 (“the Act”) (“the 424A Letter”).
(b)The purported information which was given to the applicant by means of the 424A letter included statements in the 424A letter as follows:
1. You told the Tribunal that your travelling companion (named by the Tribunal in the 424A letter but hereinafter referred to as “SZIAR”) probably worked for a machine processing factory, but that this was a different subsidiary company from the one in which you were employed. You told the Tribunal that you had met SZIAR on the aeroplane to Australia.
2. The Tribunal advised you that Mr C [SZIAR] had told the Tribunal that he had met you at the H… F… [“HF”] company, that the company was privately owned and he had not told the Tribunal that he and you had met “on the aeroplane”.
3. That the information (referred to in 1 and 2 above) is relevant as it may indicate you have provided inconsistent information with that of SZIAR and it may lead the Tribunal to conclude you are not a witness of truth.
(c)The reference to “the Tribunal” in paragraph 1 and where first mentioned in these Particulars is a reference to the Tribunal differently constituted to that which made the decision under review in these proceedings and was a reference to the Tribunal as constituted for the purposes of the Tribunal’s first review of the decision of a delegate of the first respondent in relation to the applicant’s protection visa application which review was determined adversely to the applicant by a decision of the Tribunal delivered on 13 December 2005 (“the First Tribunal”).
(d)The reference to “the Tribunal” where secondly mentioned in paragraph 2 of these Particulars is a reference to the Tribunal as constituted for the purposes of making a decision on an application for review by SZIAR (“the SZIAR Tribunal”).
(e)The SZIAR Decision was given by the Tribunal on 13 December 2005.
(f)The Tribunal was constituted by the same person for the purposes of the First Tribunal Decision as it was for the SZIAR Decision.
(g)In the 424A letter the Tribunal:
(i) did not set out the words of the applicant to the First Tribunal;
(ii) instead set out the account given by the Presiding Member of the First Tribunal as to what the applicant had said at the review hearing before it, such that the applicant was deprived of being provided with the precise words which he had used;
(iii) incorrectly quoted the account given by the Presiding Member of the First Tribunal in that the account given by the Presiding Member of the First Tribunal had been in the following terms (CB 193.7):
1.The Tribunal asked the Applicant whether he had travelled alone to Australia. The Applicant told the Tribunal that he had and that he had met SZIAR on the aeroplane. He twice told the Tribunal that although SZIAR and he worked for the same company, he did not know SZIAR until he met him on the aeroplane. When the Tribunal repeated this statement back to the Applicant he then said that just prior to boarding the plane, he was introduced to SZIAR by someone else from the company and told that they were both going to Australia. He said again that this was the first time he had met SZIAR.
2.The Tribunal advised the Applicant that SZIAR had told the Tribunal that he had met the applicant “at the company” (which was privately owned), and he had not told the Tribunal that he and the applicant had met on the “aeroplane”.
(h)The Tribunal did not advise the applicant that the information that it was intending to rely on was the First Tribunal’s account of the evidence given to it by the applicant and the account given by the SZIAR Tribunal as to the evidence given to it.
(i)did not set out the words spoken by SZIAR to the SZIAR Tribunal.
(j)did not accurately set out the account given in the decision by the SZIAR Tribunal as to the evidence given to it:
Particulars
(i) Did not refer to the fact that the account of the SZIAR Tribunal had been that SZIAR had worked for a company known as HF Tech (Material) Trading Company which should have suggested to the Tribunal that it was a different company to the HF company described by the applicant where the applicant’s claim was that SZIAR worked for a different subsidiary from him.
(ii) Did not refer to the fact that the account of the SZIAR Tribunal had recounted that SZIAR had said that he had met the applicant “in the company” and not “at the HF Company” as asserted by the Tribunal in the 424A letter.
such that the purported information in the 424A letter was misleading and the applicant was denied the possibility of a successful outcome.
Findings of the Court in relation to the grounds in the amended application
Mr C was the applicant in another matter before the Tribunal (SZIAR). The case put for the present applicant is that he was misled by the information put by the Tribunal in his s.424A letter, being “that Mr C had told the Tribunal that he had met you at the HF Company” (CB 244-245), and that “the company was privately owned” (CB 245.1). It is said that on a proper interpretation, that is not an accurate representation of the evidence given to the Tribunal by Mr C. The first respondent contends that it is an accurate representation.
The Court accepts the submission by the first respondent that it was accurate for the Tribunal to say “that Mr C had told the Tribunal that he had met you [the present applicant, SZIAQ] at the HF Company”. The Court refers to the following excerpt from Mr C’s Tribunal hearing (Affidavit of Michaela Byers, sworn on 16 November 2007 and filed on 19 November 2007, Attachment “A”, pp.19-24) (emphasis added):
[Page 19]
Tribunal Member:
You say you were sent here by your company on a business visa?
Mr C:
Right.
Tribunal Member:
Which company?
Mr C:
(Chinese name)
Tribunal Member:
Could you write it down for me please?
(Mr C complies)
Tribunal Member:
Could you please write that in English for me?
(Mr C complies)
………
[Page 21]
Tribunal Member:
So you worked for the HF Tech Company for two years?
Mr C:
Right.
………
Tribunal Member:
Why did they – did they pay for your trip - did the HF Company pay for your trip to Australia?
Mr C:
Right.
Tribunal Member:
Yes?
Mr C:
Yes.
………
[Page 23]
Tribunal Member:
Who did you come to Australia with?
Mr C:
(Chinese name) [referring to SZIAQ]
Tribunal Member:
Where did you meet him?
Mr C:
In the company.
Tribunal Member:
How long has he been there?
Mr C:
Around two years.
Tribunal Member:
How many?
Mr C:
Two years.
Tribunal Member:
So he joined the company the same time as you?
Mr C:
Not together.
Tribunal Member:
Did you know him before you met in the company?
Mr C:
No.
Tribunal Member:
Who owns the company?
Mr C:
The boss’ name is Jun (?).
Tribunal Member:
Is it a private company?
Mr C:
Yes.
Tribunal Member:
Owned by a single company?
Mr C:
Yes
The Court presumes that the Tribunal read the name of the company correctly as it had been written in English by Mr C (Attachment A, p.20.9). It was accurate also for the Tribunal to say that Mr C said that the company was privately owned. Those are the two statements said by the applicant to be misleading.
The applicant makes no complaint about the third statement in the s.424A letter that “he had not told the Tribunal that he and you had met ‘on the aeroplane’” (Transcript 13, line 26 – Transcript 14, line 16). In any event, that statement is accurate.
The evidence by Mr C was given in the hearing of his application to the Tribunal (RRT Reference N05/51135, decision handed down on 13 December 2005). It is conceded for the applicant that it was open to the Tribunal in the present matter to have regard to evidence given in Mr C’s hearing.
For the applicant to succeed he must establish that the Tribunal made an error of law. The Court accepts the submissions for the applicant that the Tribunal must not mislead an applicant, as supported by the following references:
· Kanda v Government of Malaya [1962] AC 322 at 337 per Lord Denning:
If the rights to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them.
· Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 176 ALR 219 per Chief Justice Gleeson at [3]:
As to the first issue, the statement in question covered a matter which had a bearing upon the credibility of the prosecutor. It misled the prosecutor, as a consequence of which he was deprived of the opportunity to answer, by evidence and argument, adverse inferences which were based in part upon a misunderstanding of his previous conduct. Had he been given an opportunity to correct the misunderstanding, a different view might have been taken as to his credibility.
· SZAGI & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 484 per Raphael FM at [25]:
In addition I am concerned that the conduct of the Tribunal was not just a failure to comply with section 424A(1) but also a misleading of the applicant by the use of words which could have been (and were) read as saying that if documents were not directly discussed by the Tribunal then the Tribunal had no evidence that they were fabrications. The importance for considerations of relief of the Tribunal's actions in misleading an applicant has been considered by the High Court in cases such as Re Refugee Review Tribunal; ex parte Aala (2002) 204 CLR 82; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S154/2002 [2003] HCA 60. The High Court has been prepared to find that a jurisdictional error has occurred where the actions of the Tribunal have misled an applicant.
· Minister for Immigration and Multicultural and Indigenous Affairs v Applicant M1031/03 [2005] FCA 388 per Justice Lander at [60]-[61]:
A party appearing before the RRT is entitled to assume that the RRT will not mislead the party and that any proposition put to the party as being evidence contained in country information can be relied upon as being accurate.
The RRT has an obligation to put any country information upon which it seeks the applicant’s comments in a balanced fashion so as not to mislead the applicant.
Also, see Minister for Immigration and Multicultural and Indigenous Affairs v SGJB [2003] FCAFC 290; Applicant A200 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 547.
It was not misleading or capable of being misleading for the Tribunal to state that the applicant told the Tribunal that Mr C probably worked for a machinery processing factory, but in a different subsidiary company from the one in which he (the present applicant) was employed, and then to say that Mr C had told the Tribunal that he met the applicant at the HF Company (CB 245). It is clear from the statements in the 424A letter that the information was that the two worked for different subsidiaries (CB 245.1), which accords with the statement of the present applicant at CB 193.9. According to the present applicant, the parent company and the subsidiary companies all had the same name, that is, the “HF Company” (CB 193.8). It was not misleading or capable of being misleading for the Tribunal to state that the applicant had told the Tribunal that the HF Company was owned by the government, and that Mr C had told the Tribunal that the company was privately owned. The applicant told the Tribunal that the company was a state owned company (CB 192.8, 260.6), and it is clear from the records that Mr C told the Tribunal that the company was a private company (affidavit of Michaela Byers, sworn on 16 November 2007 and filed on 19 November 2007, Annexure A, p.9.6). Therefore that statement in the s.424A letter is accurate.
It is submitted for the applicant that the Tribunal should have used the exact language used by Mr C and by the applicant. The Court finds no requirement to do that. The obligation is to put the material to the applicant in a balanced fashion (Applicant M1031/2003 (ante)), which was done.
It is then alleged that poor interpretation at the first hearing by the Tribunal of Mr C’s claim, “goes towards the possibility of the present applicant being deprived of a fair hearing”. Mr C was granted another hearing with a different interpreter. The Court accepts the submission for the first respondent that on investigation by the Tribunal at the second hearing, there was “no acceptance on the part of the tribunal that there was a bad translation” (Transcript 16, line 7). The Court finds no implication that the interpretation deprived the present applicant of a fair hearing.
It is then submitted for the applicant that
all the Tribunal was doing was pointing to an inconsistency between this applicant’s evidence [SZIAQ] and the other applicant’s evidence [Mr C] and the simple fact that they’re inconsistent. (Transcript 11, line 12)
It was held in Chen Xin He v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, RD Nicholson J, 23 November 1995, unreported) at [24] that the Tribunal
[is] required…not only to consider inconsistencies but also to determine what evidence it found credible.
The Tribunal had evidence from another applicant (Mr C) that appeared to be inconsistent with the evidence of the present applicant: it was appropriate to put those inconsistencies to the applicant for comment.
The Court finds that the statements by the Tribunal were not misleading, or capable of being misleading. The Court finds no denial of procedural fairness. A breach of s.424A has not been established.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application and amended application are dismissed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: M Giang
Date: 6 December 2007
7
1