SZICM v Minister for Immigration

[2007] FMCA 591

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZICM v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 591

MIGRATION – Refugee – no ‘genuine basis’ for claims – no s.424A error – s.424A(3)(b) exception – Tribunal unable to accept veracity of applicant’s claims – no bias – no obligation on Tribunal to refer to independent information – no s.91R issue – application dismissed.

Migration Act 1958, ss.36(2), 424A, 91R, 474(2), 64

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476
SJSB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 215
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241

Applicant: SZICM

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 121 of 2006

Judgment of: Nicholls FM

Hearing date: 16 April 2007

Date of Last Submission: 4 April 2007

Delivered at: Sydney

Delivered on: 16 April 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Mr. G. Hooper

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The reference to the name of the first respondent be amended to read “Minister for Immigration and Citizenship”.

2. The application is dismissed.

3. The applicant to pay the first respondent’s costs set in the amount of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 121 of 2006

SZICM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised)

1. This is an application filed in this Court on 13 January 2006 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 24 November 2005 and handed down on 15 December 2005 to affirm the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

2. The applicant is a citizen of the People’s Republic of China who arrived in Australia on 27 April 2005 and lodged an application for a protection visa with the first respondent’s Department on 4 May 2005. On 6 August 2005 a delegate of the respondent Minister refused to grant a protection visa to the applicant. On 6 September 2005 the applicant applied to the Tribunal for review of this decision.

3. The applicant claimed that he feared persecution from the Chinese authorities because “he raised objections” about the physical mistreatment and brutality of police in their treatment of Catholics whom they had detained for reason of their involvement in “underground” churches. He claimed that he treated some patients in his capacity as a doctor, and they told him they were “underground” Catholics who had sustained injuries while in police detention. He claimed that he issued them with medical certificates which indicated that they had been beaten by police batons. When his patients sued the police in Court using the medical certificates as evidence, the police then came after him and accused him of issuing false certificates. He claimed that in early 2005 the police came to his home and detained him but that by bribing a government official he was released after four days. He claimed that the authorities were “…worried that I would disclose how they had persecuted the underground church members, and how they had passed away.” (CB 19.9).

4. The applicant’s claims are set out in his application for a protection visa (reproduced in the Court Book (“CB”) at CB 1 to CB 26), and in the Tribunal’s account of the oral evidence that he gave at the hearing before the Tribunal on 14 November 2005 (reproduced in its decision record at CB 61.2 to CB 62.8).

5. The Tribunal’s “Findings and Reasons” are reproduced at CB 62.9 to CB 63.8. The Tribunal was not satisfied that the applicant had a well founded fear of harm from the police or that there existed a real chance that he would face harm from the police on his return to China. The Tribunal found:

   1)It did not accept that there was a “genuine basis” for the applicant’s claim that he faced harm from the police on his return to China (CB 63.1).

   2)That the applicant’s oral evidence in respect to the events which he claimed had given rise to his fear of harm from the police was “hesitant, vague and ad hoc” (CB 63.2).

   3)That the applicant was unable to provide relevant detail about the claimed court action (CB 63.3).

   4)That the unsatisfactory nature of the applicant’s evidence led it to reject his claims that he was involved in issuing medical certificates to persons tortured by the police and that these medical certificates played a central role in court action taken against the police (CB 63.4).

   5)That the applicant was “ambivalent and ambiguous” about the nature of the harm he claimed to fear and whom he thought would inflict harm upon him (CB 63.5).

   6)That the applicant was “undecided”, when asked to clarify, whether he feared the police authorities in general, or just the police involved in the court case who might seek revenge on him (CB 63.6).

   7)It did not accept that the applicant “faces harm from either particular police or the police authorities per se” (CB 63.7).

   Based on the above findings the Tribunal concluded that the applicant was not a person to whom Australia owed protection obligations under the Refugees Convention and therefore did not satisfy the criterion set out in s.36(2) of the Migration Act 1958 (“the Act”).

6. The applicant’s amended application filed in this Court on 2 May 2006 raises one particularised ground of complaint:

   “1. The Tribunal failed to carry out its statutory duty.”

7. With reference to the particulars provided this is a complaint that the Tribunal failed to meet its statutory obligation set out in ss.424A(1) and (2) of the Act in that it relied on information that was in the first respondent’s file and not given by him to the Tribunal for the purposes of the review. I saw this as a reference to what was contained in his protection visa application. The applicant relies on extracts from SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24.

8. The applicant also filed on 13 January 2006, an affidavit made by him on 25 December 2005, in which he complains that the Tribunal was biased against him.

9. Before me today the applicant appeared unrepresented. He was assisted by an interpreter in the Mandarin language. Mr. G. Hooper appeared for the respondent. The applicant read from a prepared note which he said had been drafted with the help of a friend. The applicant stated:

   1)That the Tribunal did not make its decision according to the Act. Nothing further was added to what is asserted in the application. His complaint is that he was not given an opportunity to comment pursuant to s.424A of the Act.

   2)That the Tribunal’s finding that he was hesitant during the hearing was not correct.

   3)A reference to s.91R of the Act, but was unable to explain (beyond the reference to “a friend”) what the relevance of this section was to his complaint.

10. The respondent submitted that the Tribunal’s decision is a privative clause decision as defined by s.474(2) of the Act and that s.474 validly operates to prevent the judicial review of all decisions under the Act except those vitiated by jurisdictional error (Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476). [Note: the Tribunal’s decision was signed on 24 November 2005 and handed down on 15 December 2005].

11. Further, in response to the sole ground raised by the applicant in his amended application, the respondent contends that the complaint bears no relevance to the Tribunal’s decision record, in that that record makes no reference to information obtained from the applicant’s protection visa application. The respondent submitted that the Tribunal relied on the inadequate nature of the applicant’s oral evidence at the hearing which, for the purposes of the review, falls within the exception provided in s.424A(3)(b) of the Act.

12. The respondent submitted that the findings made by the Tribunal, based on the evidence before it, were open to it and relied on SJSB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 215 at [15]-[16]. The respondent submitted that the Tribunal was simply unable to be satisfied as to the veracity of the applicant’s claims, and accordingly had no alternative but to refuse the application.

13. I agree with these submissions. Any plain reading of the Tribunal’s decision record reveals that the Tribunal based its conclusion that the applicant did not have a well founded fear of persecution in China on its findings that there was no “genuine basis” to the applicant’s claim, and that he was “ambivalent and ambiguous” about the harm he claimed to fear, and who would seek to harm him. It is clear that in making its decision the Tribunal relied on what the applicant had said at the hearing before it such that it relied on information that comes within the exception contained in s.424A(3)(b), from the obligations set out in s.424A(1) and (2). This is not a case of the Tribunal relying on inconsistency between what is in the protection visa application with what was subsequently said at a hearing (see SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 (“SZEEU”) at SZBMI per Allsop J. at [221] to [235]). To the extent that the Tribunal relied on any “inconsistency” it was that details of what was in the medical certificates “varied in the course of the hearing” (CB 63.3).

14. The Tribunal considered what the applicant had put to it at the hearings and made findings that come within its function as the decision maker “par excellence” (Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, per McHugh J. at [67]). As the respondent submits, the Tribunal could not reach the requisite level of satisfaction as required by s.65 of the Act, about the matter set out at s.36(2) of the Act. That is, in effect, that the applicant met the definition of refugee as set out in Article 1A(2) of the Refugees Convention.

15. Nor can I see, with reference to relevant authorities such as Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 that the Tribunal acted with bias, or that a well informed lay observer would apprehend bias on the part of the Tribunal in the making of the decision. No evidence whatsoever has been put before the Court to support such a claim.

16. For that matter nor do I agree with the applicant’s assertion in the originating application to the Court that the Tribunal’s findings about his oral evidence lacked a rational or logical foundation. As already referred to [above], the Tribunal’s role is to evaluate an applicant’s evidence and to make relevant findings. I cannot see that the Tribunal’s findings lacked foundation. Its findings were open to it on what the applicant himself had said to it. Nor has the applicant produced evidence to the Court to challenge the Tribunal’s findings as to the character or nature of the presentation of his evidence (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 (“NAOA”)).   

17. Nor can I see that the Tribunal failed to consider the claims as put by the applicant (with reference to ground 2 in the originating application). Again, no evidence has been put before the Court to challenge the Tribunal’s account of the hearing and what the applicant said to it.

18. Contrary to what the applicant asserts in his originating application, there is no obligation on the Tribunal in the circumstances of this case to “refer to any independent information”. The Tribunal could not be satisfied that the applicant met the requirement of s.36(2) based on what the applicant himself told the Tribunal. In these circumstances the Tribunal did not need to go further and search for any other “independent information”. Nor does the applicant say what this independent information could be. Nor is there any evidence before the Court that he put on such independent information before the Tribunal or asked the Tribunal to make any further enquiries.

19. Specifically in relation to the applicant’s complaints submitted to the Court:

    1)The applicant was given the opportunity to comment about his claims to the Tribunal. This was done at the hearing the Tribunal conducted with him. In the circumstances of this case, I cannot see that the Tribunal’s obligation pursuant to s.424A of the Act was engaged, other than it relied on information provided by the applicant himself at the hearing for the purposes of the review such that any such information comes within the exception contained in s.424A(3)(b) from the obligation in ss.424A(1) and (2).

    2)The applicant’s complaint that the Tribunal’s description of his evidence as “hesitant” and “vague” was not correct, is not supported by any evidence whatsoever. This Court can only proceed on the evidence before it (NAOA). The only evidence of what occurred at the hearing is that provided by the Tribunal in its decision record. This remains unchallenged. I should note in this regard the applicant did participate in the Court’s Legal Advice Scheme and consulted Counsel on the panel of that scheme on 20 July 2006 and, with the assistance of an interpreter in the Mandarin language, was given advice on that date.

    3)Nor can I see on what is before me that any reference to s.91R of the Act can assist the applicant. The Tribunal’s decision did not turn on the issue of “serious harm”, or an examination of what constitutes “persecution: for the purposes of Article 1A(2) of the Refugees Convention. As already stated, the Tribunal’s decision turned on its inability to accept, because of what had been put to it at the hearing, that there was a “genuine basis” to the applicant’s claims. Nor did the circumstances of this case require it to consider whether it should disregard conduct engaged in by the applicant while in Australia.

20. In all, for the reasons stated above, I cannot discern jurisdictional error in the Tribunal’s decision. The application before the Court is therefore dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate: Dawnie Lam

Date: 23 April 2007