SZIFN v Minister for Immigration
[2006] FMCA 799
•2 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIFN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 799 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in China – no reviewable error found – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958, ss.424A, 422B, 425 |
| Minister for Immigration v Lay Lat [2006] FCAFC 61 |
| Applicant: | SZIFN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG287 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 2 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 2 June 2006 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr D Jordan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG287 of 2006
| SZIFN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application under the Migration Act 1958 (Cth) (“the Migration Act”) seeking review of a decision of the Refugee Review Tribunal (“the RRT”). The RRT decision was handed down on 5 January 2006. The application asserts notification of it on 16 January 2006. The application was filed on 30 January 2006. It was filed within the time prescribed by the Migration Act. 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 political persecution. I adopt as background for the purposes of this judgment paragraphs 2 to 5 of corrected written submissions filed on behalf of the Minister in court today:
The applicant is a national of the People’s Republic of China (China). He claimed to fear persecution in China for reason of political opinion. He claimed that he had assisted three students in their attempt to flee to Taiwan to evade persecution by the Public Security Bureau (PSB). He claimed that these students were sought by the PSB because they had planned a fifteen year anniversary commemoration of the Tiananmen Square massacre. He claimed that he agreed to assist because one of the students was a cousin of a friend of the applicant, with whom he had discussed political and economic reform, and because his uncle had been killed in the Tiananmen Square massacre. According to the applicant, he was present when his friend and one of the three students were arrested by PSB officers but was able to escape. He claimed that he then went into hiding until his girlfriend arranged for his departure from China using a passport issued in a false name. He claimed that he was now on the PSB blacklist.[1]
The RRT accepted the applicant’s evidence concerning his true identity but did not believe his claims regarding his reasons for coming to Australia.[2] This adverse credibility finding was based upon the RRT’s assessment of the evidence given by the applicant at the hearing. For example:
i)It appeared that the applicant’s explanation of the political and economic discussions which he claimed to have had with his friend had been learned by rote because he was unable to apply his concept of democracy to the Chinese system of government.[3]
ii)In circumstances where he claimed no expertise in assisting people to escape to Taiwan, the applicant could not satisfactorily explain why he had been selected to assist the three students, or why they could not have simply obtained false passports, as the applicant did in order to travel to Australia.[4]
iii)The applicant’s account of the circumstances surrounding the arrest by the PSB of his friend and one of the three students was unconvincing.[5]
iv)Having regard to the RRT’s adverse view of the applicant’s credibility, and country information which indicated that forged official documents were readily accessible in China, the RRT did not accept that documents provided by the applicant in support of his claims were genuine.[6]
The RRT accepted that the applicant had departed China using a passport under a different identity but was satisfied that any prosecution for this conduct would be pursuant to a law of general application.[7] This finding was made in the context of the applicant’s submission to the tribunal that his fear of persecution was mainly based upon his political opinions and actions against the Chinese authorities and not upon his illegal departure from China.[8]
As a consequence of these findings, the RRT was not satisfied that the applicant was of interest to the Chinese authorities for the reasons he claimed.
[1] The applicant’s claims are set out at Green Book (GB) 24-26; his evidence at the hearing is summarised by the RRT at GB 70-74
[2] GB 75.7
[3] GB 75.8
[4] GB 76.3
[5] GB 76.4
[6] GB 76.5
[7] GB 76.8
[8] GB 45.6, 70.3
The judicial review application raises two grounds of review. First, the application asserts a breach of s.424A(1) of the Migration Act in relation to country information. Secondly, the application asserts a breach of s.425 of the Migration Act in relation to the conduct of the hearing by the presiding member. The applicant expanded upon these assertions in written submissions filed on 16 May 2006. He also made oral submissions. In his oral submissions the applicant disputed the accuracy of the record of the RRT decision to the extent that it purports to disclose that the presiding member referred the applicant, at the hearing, to country information about forged documents in China (GB 74). However, the applicant has not submitted any evidence of his own as to what occurred, or did not occur, at the RRT hearing.
On 1 March 2006 I made a range of orders, including an order that the applicant file and serve any affidavit containing additional evidence relied upon including a transcript of the RRT hearing by 5 April 2006. The applicant has not produced a transcript or any affidavit evidence other than the affidavit accompanying his application which simply introduced the record of the RRT decision and reasons. The Minister's outline of submissions deals with the applicant's contentions from paragraphs 7 through to 13. I agree with those submissions and adopt them for the purposes of this judgment:
The application identifies two grounds of review which are expressed in terms of error of law constituting jurisdictional error and denial of procedural fairness. It appears, however, that the operative grounds of review are those identified under the heading “Particulars”.
Particular one contends that the tribunal failed to comply with s.424A(1) of the Migration Act. Further particulars are provided of five categories of information which, the applicant contends, required written disclosure pursuant to s.424A(1) of the Act. These contentions should be rejected because this information fell within the exception in either s.424A(3)(a) or s.424A(3)(b) of the Act.
Particular two asserts that the tribunal failed to comply with s.425 of the Act. Further particulars assert that the RRT acted “perfunctorily or superficially and NEVER wanted to genuinely allow me to give my oral evidence and to present my arguments”. There is no evidentiary basis for these assertions which amount to a claim that the RRT’s decision was affected by actual bias and/or bad faith. The RRT’s summary of the evidence at the hearing indicates that the RRT squarely raised the material issues and allowed the applicant an opportunity to respond to those issues.
Particular three complains that the tribunal has made “wrong findings” which amount to a denial of procedural fairness. Put in these terms, this does not articulate a denial of procedural fairness but is merely an attack upon the merits of the RRT’s decision. This is confirmed by further particulars which traverse the merits of several factual findings made by the RRT.
Particular four asserts bias by the tribunal in relation to the documents which he submitted in support of his claims. However, the further particulars suggest that the applicant’s assertion is not of actual or apprehended bias but, rather, is that the RRT should not have accepted information from the Department of Foreign Affairs and Trade concerning the prevalence of forged documents and should have asked to have the documents examined forensically. So understood, this particular is another challenge to the merits of the RRT’s findings.
Particular five simply states the applicant’s belief that the RRT did not assess his claims fairly and carefully.
For the reasons given above, none of the contentions raised by the application demonstrate jurisdictional error affecting the RRT’s decision. The RRT’s adverse credibility finding was open, on the applicant’s evidence at the hearing, for the reasons given by the RRT. The RRT’s summary of the hearing shows that the RRT identified all of the issues which it considered significant and gave the applicant the opportunity to respond to those issues.
I am bound by Federal Court authority which establishes that there was no obligation on the RRT under s.424A of the Migration Act to disclose country information to the applicant. In addition the Full Federal Court in the Minister for Immigration v Lay Lat [2006] FCAFC 61 has confirmed that the general law fair hearing rule is excluded by s.422B of the Migration Act. Even if there had been an obligation under the general law to disclose to the applicant the country information about forged documents in China the only available evidence I have, which is that set out on page 74 of the court book, establishes that the information was disclosed, notwithstanding the applicant's denial.
Neither was there any breach of s.425 of the Migration Act. The applicant was invited to a hearing before the RRT and attended. It is true that in order for the RRT to comply with s.425 the hearing invitation must be something more than an empty gesture or hollow shell. The assertions made by the applicant about the conduct of the hearing by the presiding member would go some way to establishing that the hearing invitation might have been an empty gesture if those assertions could have been proved. Indeed, the applicant's assertions, if supported by evidence, might even have pointed to bias, either apprehended or actual, or bad faith. However, the applicant has produced no evidence to support his assertions.
The presiding member’s account of what occurred at the hearing, set out in the record of the RRT decision, discloses that the hearing was not entirely amicable. It is apparent that the presiding member was unimpressed with the applicant's evidence and the first paragraph on page 72 of the green book indicates that the applicant was interrupted and cut short. That itself, however, falls a long way short of demonstrating jurisdictional error. In his oral submissions the applicant also asserted that there were interpretation problems at the hearing. That is a fresh allegation and there is no evidence to support it.
I find on the basis of the material before me that the RRT decision is free from jurisdictional error and is hence a privative clause decision.
I order that the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $4,300. The Federal Magistrates Court Rules 2001 (Cth) provide for scale costs of $5,000 in the present circumstances but the Minister properly seeks a lesser amount. The applicant did not wish to be heard on the question of costs.
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 $4,300.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 8 June 2006
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