SZICX v Minister for Immigration - [2007] FMCA 423

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZICX v MINISTER FOR IMMIGRATION

[2007] FMCA 423

MIGRATION – Review of decision of Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – second protection visa application made by applicant in false name – whether RRT entitled to make adverse credit findings in respect of applicant – whether this Court has jurisdiction in respect of primary decisions – whether RRT complied with its statutory obligations in the making of its decision.

Federal Magistrates Court rules 2001 sch.1 pt.2 r.1(c)
Judiciary Act (Cth), s.39B
Migration Act (Cth), ss.424A, 424A(1), 474, 476, 476(4), pt.8 div.2

Applicant:

SZICX

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File number:

SYG148 of 2006

Judgment of:

FM Emmett

Hearing date:

19 March 2007

Date of last submission:

19 March 2007

Delivered at:

Sydney

Delivered on:

19 March 2007

REPRESENTATION

Applicant appeared on his own behalf

Counsel for the Respondent:

Mr G. R. Kennett

Solicitors for the Respondent:

Mr I. Muthalib, Blake Dawson Waldron

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG148 of 2006

SZICX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

Ex tempore

This is an application filed in this Court on 16 January 2006 made pursuant to s.39B of the Judiciary Act (Cth) and pt.8 div.2 of the Migration Act (Cth) (“the Act”) for, inter alia, judicial review of a decision of the Refugee Review Tribunal dated 12 December 2005 (“the Tribunal”). The Tribunal decision affirmed a decision of a delegate of the first respondent dated 22 May 1997 in respect of which the applicant was notified on 1 September 2005. In his application, the applicant also sought declarations that two decisions made by delegates of the first respondent, dated 22 May 1997 (“the First Delegate”) and 12 October 2005 (“the Second Delegate”), are invalid and of no effect.
The applicant was unrepresented before the Court this morning, although had the assistance of an interpreter. The applicant read an affidavit, affirmed by him on 16 January 2006, in which he recited the history of his applications for protection in Australia. Upon objection by the first respondent, paragraphs 20, 21, 22, 23 and 28 of the applicant’s affidavit are rejected. The affidavit is set out in full as follows:
1. I am a citizen of the People’s Republic of China with Korean ethnicity.
2. On 2 January 1997 I lodged a protection visa application and was granted a bridging visa A.
3. On 22 May 1997 Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) refused my application but I was not notified.
4. On 22 May 2005 I re-entered Australia.
5. On 15 May 2005 I re-entered Australia.
6. On 23 June 2005 I was detained.
7. On 24 June 2005 I lodged another protection visa with the assistance of a friend and agent.
8. On 27 June 2005 I was released from detention.
9. By a letter dated 1 September 2005 DIMIA notified me of the decision of my 1997 protection visa application and reinstated my bridging visa A.
10. On 4 October 2005 I sought legal advice.
11. On 7 October 2005 I lodged a review application in the Refugee Review Tribunal (RRT).
12. On 10 October 2005 with the help of Mr Michael Lucas, who is the manager at my work place, I withdrew the protection visa application lodged on 24 June 2005 which was lodged by my previous agent while I was detained.
13. DIMIA’s file note confirmed its conversation with Mr Michael Lucas and receipt of the letter by fax. Copies of the folio 123 and 124 of DIMIA file CLF2005/50302 are attached and marked with the letters “A” and “B”.
14. On 12 October 2005 DIMIA officer made a decision to refuse that protection visa application. A copy of that decision is attached and marked with the letter “C”.
15. By a letter dated 3 November 2005 the RRT asked me to attend a hearing set down on 12 December 2005.
16. By another letter dated 3 November 2005 the RRT asked me to comment on information provided. A copy of that letter is attached and is marked with the letter “D”.
17. The RRT said “a check of his 2005 Protection Visa application did not reveal the applicant was assisted by any person in lodging his 2005 Protection Visa application.”
18. On 23 November 2005 my representative sent a letter by fax in response to the RRT’s request. A copy of that letter is attached and is marked with letter the “E”.
19. On 12 December 2005 I attended the RRT for a hearing without my representative because I wanted to reduce the costs.
20. During the hearing the member did not ask me anything about the written comments in response to the RRT’s request for written comments.
21. I told the member that I came to Australia because my family had experienced extreme financial hardship due to my inability to provide for my family including my disabled son. My inability to find proper work was due to my past history and that both private and public sections were unwilling to hire me.
22. The only thing the member kept on repeating was that he thought I should be able to find work in China as other Koreans in China could.
23. At the end of the hearing the member said he will take what I said into account in making his decision.
24. By a letter dated 12 December 2005 the RRT invited me for the handing down of the decision which was scheduled for 20 December 2005.
25. On 20 December the RRT handed down a decision which was signed on 12 December 2005 affirming DIMIA’s decision to refuse my protection visa application.
26. I am disappointed and surprised to learn that the member had signed the decision on the same day of the hearing and stated that he was “sufficiently satisfied the present applicant is not a witness of truth such that I am satisfied there are reasonable grounds to reject all his material claims.” (page 11 of the decision record).
27. On 21 December 2005 I received the decision record from my representative. A copy of the decision is attached and is marked with the letter “F”.
28. When the decision record was explained to me some material in the decision record is not what I said in the hearing.
29. I believe the RRT member did not have an open mind in hearing my claims and had decided to refuse my application before the hearing.
30. This affidavit has been explained to me in Mandarin by Chris Yuen.”
The somewhat complicated history of this matter is accurately summarised by counsel for the first respondent, Mr Kennett, in his written submissions as follows:
“1. The Applicant arrived in Australia in 1996 and applied for a protection visa in January 1997 (“the first application”). That visa was refused in May 1997 and no review was sought at that time, but the Applicant remained in Australia until he was removed in April 2004.
2. The Applicant arrived in Australia again using a false name and passport in May 2005 and applied for a protection visa in June 2005 (“the second application”).
3. The Department formed the view that it had not notified the Applicant properly of its decision for refuse the first application, and on 1 September 2005 it sent him a letter formally notifying him of the decision that had been made in May 1997. On 7 October 2005 he lodged an application for review of that decision with the Refugee Review Tribunal. The Tribunal handed down its decision, affirming the decision of the delegate, on 20 December 2005 (“the Tribunal Decision”).
4. Meanwhile, on 19 August 2005 the Department advised the Applicant that the second application was not a valid application (because the first application was still on foot); but, flowing legal advice, it changed its view and treated the second application as valid. It asked the Applicant to provide any additional material he wanted to rely on by 11 October 2005.
5. On 10 October 2005 the Applicant wrote to the Department saying:
I… would like to withdraw false information stated on my 2005 Protection Visa Application written by my Immigration Solicitor without my knowledge.
The truth of the matter is, the original application lodged in 1997 which says “I will be charged and jailed if returned to China for being involved in anti-government activities”.
Please consider this application as it is the truth that my real name is…
6. Mr Cantwell, a delegate of the Minister, made a decision on 12 October 2005 to refuse the second application (“the Cantwell decision”).

…

11. The Application seeks to challenge both the Cantwell decision (prayer for relief, order 1) and the Tribunal decision (orders 2-5).
12. As to the Cantwell decision, the ground of challenge is that there was no jurisdiction to make the decision as the second application had been withdrawn (ground 3).
13. As to the Tribunal decision, the pleaded grounds are:
(1) actual bias (ground 1); and
(2) failure to consider the Applicant’s fear of significant economic hardship as a form of persecution (ground 2).”

The matter first came before me for hearing in August 2006 and was adjourned, on 31 August 2006, on the basis that the applicant had asserted that he had not had a fair hearing before the Tribunal. The purpose of the adjournment and, indeed, directions made at the time, was to provide an opportunity to the applicant to file and serve any further evidence in support of those contentions, including the preparation and filing of a transcript of the hearing. There has been no further evidence filed by or on behalf of the applicant.
The applicant informed this Court this morning that he had understood a friend of his was going to have the transcript prepared and filed and served. I asked the applicant if he had a copy of the transcript with him and he responded that he did not. The applicant then sought an opportunity for a further adjournment to allow the applicant to put on further evidence. The application made today for a further adjournment was refused for the following reasons:
a)having regard to the elapse of more that 6 months since the matter was last before me;
b)the specific nature for the adjournment granted at that time;
c)the specific directions given to the applicant on that occasion for the filing and serving of a transcript; and
d)the failure by the applicant to comply, or even today to have any further evidence.
In his protection visa application, filed on 2 January 1997, (“the First Visa Application”) the applicant claimed that he was a citizen of the People’s Republic of China (“the PRC”) and of Korean ethnicity and that he feared persecution by the PRC authorities because the activities he conducted were aimed at undermining the PRC government and freeing the Korean people. That application was refused by the First Delegate on 22 May 1997.
In his second protection visa application, filed on 24 June 2005, (“the Second Visa Application”) the applicant claimed to be applying for a protection visa because he was fleeing from the possible outcome of being prosecuted and punished in the PRC because he was supplying military information at the request of his nephew to North Korea and that he feared prosecution and imprisonment for those activities. That application was refused by the Second Delegate on 12 October 2005. That decision is the decision referred to by counsel for the first respondent in his written submissions as “the Cantwell decision”. That decision is the subject of the declaratory relief sought by the applicant in Prayer 2 of his application to this Court filed on 16 January 2006.
On 7 October 2005, the applicant lodged an application for review by the Tribunal of the First Delegate’s decision dated 22 May 1997 and notified to the applicant on 1 September 2005.
On 3 November 2005, the Tribunal wrote to the applicant, pursuant to s.424A(1) of the Act (“the 424A Letter”), identifying information that may form part of the reason for it affirming the decision under review and inviting the applicant to comment. The information referred to in that letter arose from the statement made by the applicant in support of the Second Visa Application and that it had been discovered that the Second Visa Application had been made in a false name. The letter noted that on 10 October 2005 the applicant had stated that he wished to withdraw false information stated in his Second Visa Application on the basis that such information was provided by his migration agent without his knowledge. The letter informed the applicant that a check of the Second Visa Application, lodged in 2005, did not reveal that the applicant was assisted by any person in lodging his Second Visa Application and noted that the applicant claimed that what he stated in his First Visa Application in 1997 was true, particularly, “I will be charged and jailed for I return to China for being involved in anti‑government activities”. The letter went on to inform the applicant that the Tribunal may make adverse credibility findings based on the above information and that, if the Tribunal was sufficiently satisfied that the applicant is not a witness of truth, it was open to the Tribunal to reject all his material claims as untrue.
RECORDED:-:NOT TRANSCRIBED
The applicant attended a hearing before the Tribunal on 12 December 2005 at which he gave oral evidence. The Tribunal noted that it had before it the department's file, the First Protection Visa application filed in 1997 and the Second Visa Application filed on 24 June 2005.
The Tribunal noted the claims made by the applicant in his First Visa Application lodged on 2 January 1997 and noted that the First Protection Visa application had been refused and the applicant notified on 1 September 2005. The Tribunal noted that the applicant filed the Second Visa Application on 24 June 2005 and that that application was refused by the Second Delegate on 12 October 2005.
The Tribunal noted the s.424A letter and noted the response provided on behalf of the applicant by his migration agent in the letter dated

23 November 2005.
The Tribunal then recounted the oral evidence given by the applicant at the hearing. It noted that the applicant claimed to have become involved in political activities in the PRC and that in 1996 he had a dispute with a government official at his place of work, being a government workplace, that resulted in a physical fight and his subsequent detention. The Tribunal noted the applicant claimed he was detained for two days and then released, following which he was dismissed from his government employment. The Tribunal noted that the applicant claimed that, thereafter, it had been difficult for him to obtain any other employment because his resume disclosed that he had attacked the government official.
The Tribunal also noted the applicant's claims of being an ethnic Korean and a PRC national and that he was unable to find employment because of his Korean ethnicity. The Tribunal noted that following the deportation of the applicant from Australia in May 2004 to the PRC, the applicant claimed he was still unable to find adequate employment, although stated that he was not harassed or mistreated by any person for any reason after he returned from Australia. The Tribunal noted the applicant's claim that he was not able to obtain work with which he was satisfied in the PRC, so he again arranged to borrow money to purchase a passport and travel to Australia.
The Tribunal explored with him the claims he made in his First Visa Application and noted that the applicant claimed that they were no longer true. The Tribunal noted that it put to the applicant that, whilst it understood his difficult financial position, the Tribunal was required to assess whether he was a person who invoked refugee protection pursuant to the Refugees Convention. The Tribunal noted that the applicant then told the Tribunal that his main purpose in coming to Australia was to find work and therefore be able to provide financial assistance to his family in the PRC. The Tribunal noted that when it asked the applicant whether this was his sole reason for coming to Australia, the applicant agreed this was correct.
In the Findings and Reasons section of its decision, the Tribunal referred to that exchange and found that the applicant did not have a subjective fear of any persecution in the PRC, other than his claim to have had difficulty in finding employment.
The Tribunal had regard to country information before it that led it to conclude that it was satisfied that ethnic Korean PRC nationals are not subject to any harm for that reason in and around the region where the applicant claimed to have resided. The Tribunal was satisfied that the applicant could seek and obtain work commensurate with his skills in the PRC.
The Tribunal then considered the applicant's response to the 424A Letter and found that the applicant was not a witness of truth and that none of the applicant's material claims are true. The Tribunal concluded that it was not satisfied, having considered the evidence as a whole, that the applicant is a person to whom Australia has protection obligations and, accordingly, affirmed the decision under review.
The application filed by the applicant on 16 January 2006 identified the following grounds:
“1. The RRT failed to give the applicant a fair hearing because it had made up its mind to affirm its decision before the hearing.
2. The RRT failed to take into account relevant considerations in that it failed to consider the applicant’s fear of persecution under section 91R(2) of the Migration Act. (significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist.)
3. The first respondent did not have jurisdiction to make a decision on the application (CLF2005/50302) on 12 October 2005 when it had been withdrawn on 10 October 2005.”
Ground 1 contains no particulars, and there is nothing on the face of the decision to suggest that the Tribunal approached its review and the making of its decision with a mind other than one open to persuasion. The allegation made in ground 1 is a serious allegation that would require evidence. The applicant has had some seven months to provide that evidence and none has been forthcoming.
Accordingly, ground 1 is rejected.
Ground 2 complains that the Tribunal failed to consider the applicant's fear of persecution, being the significant economic hardship, denial of access to basic services, denial of capacity to earn a livelihood where such hardship would threaten the applicant's capacity to subsist.
However, a fair reading of the Tribunal's decision does not disclose that any claims were made to the Tribunal by the applicant in those terms.
The Tribunal’s decision states that the applicant agreed that the sole reason that he came to Australia was to find work and to provide financial assistance to his family in the PRC. For that reason the Tribunal was satisfied that the applicant did not have the subjective fear of persecution in the PRC, other than difficulty in finding employment. That is a finding open to the Tribunal on the material and evidence before it and for which it provided reasons.
The Tribunal went on to consider the applicant's claims of difficulty of finding employment and again found that he could seek and obtain work commensurate with his skills in the PRC. Again, that was a finding open to the Tribunal on the material and evidence before it and for which it provided reasons.
Ultimately, the Tribunal found the applicant not to be a witness of truth and found that none of the applicant's material claims were true.
The Tribunal's finding on credibility was based on the applicant's response, dated 23 November 2005, to the Tribunal's letter, dated 11 November 2005, sent pursuant to s.424A of the Act. The Tribunal made its findings mindful of the difficulties of proof that may be faced by some applicants for refugee protection in Australia.

Having considered the applicant’s response, dated 23 November 2005, the Tribunal found that the applicant was willing and prepared to fabricate claims in an effort to enhance his claim to be a refugee in Australia.
Again, those findings and conclusions were open to the Tribunal on the material and evidence before it, and for which it provided reasons.
Accordingly, Ground 2 is not made out.
Ground 3 appears to support Prayer 2 of the relief sought in the application, namely a declaration that the delegate’s decisions made on 12 October 2005, refusing the applicant a protection visa, is invalid and of no effect.
The applicant does not contend that he was not notified of either the 12 October 2005 decision of the Second Delegate (referred to by the first respondent as “the Cantwell decision”). It is common ground that the applicant was notified on 1 September 2005 of the 22 May 1997 decision of the First Delegate (that decision being the subject of review by the Tribunal, whose decision is the subject of judicial review by this Court).
By the terms of ground 3 and Prayers 1 and 2 of the application, I understand the applicant to be contending that both the decision of the First Delegate dated 22 May 1997 and the decision of the Second Delegate dated 12 October 2005 are invalid.
The first respondent challenges the jurisdiction of this Court to conduct judicial review of either of the delegates’ decisions. Section 476 of the Act states that this Court has no jurisdiction in relation to a primary decision. A “primary decision” is defined in s.476(4) of the Act as, inter alia, a privative clause decision or a purported privative clause decision that would have been so reviewable if an application for such review had been made within a specified period.
In the circumstances, this Court is satisfied that each of the decisions of the delegates, made on 22 May 1997 and 12 October 2005, are primary decisions within the terms of the legislation.
Accordingly, pursuant to s.476 of the Act, to the extent that the applicant's application, filed on 16 January 2006, seeks judicial review of either of the decision of the First Delegate, dated 22 May 1997, or the decision of the Second Delegate, dated 12 October 2005, this Court has no jurisdiction in respect of either of those decisions.
Otherwise, the Tribunal conducted its review, including the making of its decision, in accordance with its statutory obligations and its decision is not affected by jurisdictional error. Accordingly, the Tribunal's decision is a privative clause decision, and pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding commenced by way of application filed on 16 January 2006 is dismissed.
ORDERS DELIVERED
RECORDED:-:NOT TRANSCRIBED
The first respondent seeks costs fixed in the amount of $6750. I note that such sum exceeds sch.1 pt.2 r.1(c) of the Federal Magistrates Court Rules 2001. The basis for the costs application is that the matter was originally set down for hearing on 31 August 2006 and the hearing commenced on that date. However, based on the applicant's grounds and his affidavit filed in support of those grounds, an opportunity was provided to the applicant to file and serve evidence in support of those grounds. The hearing on that occasion ran for in excess of an hour and a half and the adjournment was for the benefit and at the request of the applicant. Directions were made at that time that the applicant file and serve further evidence. No further evidence was filed by the applicant. The increase sought by the first respondent above the usual order provided in sch.1 pt.2 r.1(c) of the Federal Magistrates Rules 2001 of $5000 contemplates a hearing being concluded the either the morning or the afternoon. That did not occur in this case, and the reason it did not occur was because the applicant sought an adjournment for the purpose of filing further evidence. As stated above, none was filed. In the circumstances, I am satisfied that the costs sought are reasonable and the order sought should be made.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 7 May 2007