SZIHY v Minister for Immigration
[2006] FMCA 1599
•20 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIHY v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1599 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa – applicant a citizen of China claiming fear of persecution on the basis of political opinion – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.424A – whether Tribunal failed to comply with Migration Act 1958 s.425 – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 425 |
| SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 SZIWL vMinister for Immigration & Anor [2006] FMCA 1416 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NARV vMinister for Immigration andMulticultural and Indigenous Affairs [2003] 133 FCR 89 VHAP of 2002 vMinister for Immigration andMulticultural and Indigenous Affairs [2004] FCAFC 82 Minister for Immigration andMulticultural and Indigenous Affairs v NAMW & Ors [2004] 140 FCR 572 VJAF v Minister for Immigration andMulticultural and Indigenous Affairs [2005] FCAFC 178 Win vMinister for Immigration andMulticultural and Indigenous Affairs [2001] 105 FCR 212 VAF vMinister for Immigration andMulticultural and Indigenous Affairs [2004] 206 ALR 471 VUAX v Minister for Immigration andMulticultural and Indigenous Affairs [2004] FCAFC 158 NALA v Minister for Immigration andMulticultural and Indigenous Affairs [2004] FCAFC 241 |
| Applicant: | SZIHY |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 419 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 October 2006 |
| Date of last submission: | 18 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 20 October 2006 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms McWilliam |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 419 of 2006
| SZIHY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 20th December 2005 and handed down on 12th January 2006.
The Tribunal affirmed the decision of the Refugee Review Tribunal not to grant a protection visa to the Applicant.
Background
The Applicant is a citizen of the People’s Republic of China.
He arrived in Australia on 19th July 2005. On 19th August he applied for a Protection (Class XA) visa, claiming fear of persecution on the basis of political opinion as a result of some protests organised by the Applicant and his friends against actions of the authorities. A delegate of the Minister refused the application on 31st August 2005.The Applicant applied for a review of that decision by the Refugee Review Tribunal on 28th September 2005. The application for review was prepared with the assistance of the Applicant’s migration agent. The application was accompanied by a declaration setting out the factual basis of the applicant’s claim, which covered some two and a half pages.
The Tribunal invited the Applicant to attend a hearing on Friday 25th November to give oral evidence. The Applicant responded to the invitation, indicating that he wished to give evidence, and attended a hearing. The Applicant gave oral evidence on 25th November with the assistance of an interpreter. He set out the grounds of his application and made it clear that he did not think that the delegate had considered his claims fairly and carefully. He referred to country information that there had been in 2004 some 74,000 protests over matters relating to requisitioning of land, demolition of houses and pollution, and he described himself as a political dissident.
The Tribunal’s Findings and Reasons
The Tribunal’s findings and reasons are set out on pages 73 through to 78 of the Court Book. The Tribunal was satisfied that the Applicant is a national of the People’s Republic of China and relied on a passport and a national identity card. The documents are in two different names, and the Tribunal was not able to make a definitive finding as to which document represented the Applicant’s true identity but made a finding that it was more likely than not that the Applicant was one of the people named in the documents rather than the other.
The Tribunal accepted that the Applicant claimed that he was a farmer from Fujian province. The Tribunal did not, however, accept that the Applicant had given a credible account of the events leading up to his departure from China in a number of key respects. The Tribunal set out the reasons why it did not accept that the Applicant’s evidence was credible in those key respects.
The Tribunal referred to the Applicant’s claim of persecution of his father by the authorities in 1970 but found, on page 73, that the Applicant knew very little about his father’s circumstances. As a result, the Tribunal found, at page 74:
The Tribunal is not satisfied on the evidence before it that the applicant’s father had been involved in political activities in the past and had provided active guidance and advice to the applicant to organise and lead protests on land issues.
The Tribunal also was not satisfied that the Applicant had given consistent and credible details regarding his activities in organising meetings and protests in early 2000. The Tribunal found that the Applicant had given inconsistent evidence about the purposes of the initial protest action, which he claimed took place in February 2000. The Tribunal had no independent evidence to corroborate the Applicant’s claims of specific protests taking place in February 2000 but accepted, from general country information about demonstrations in China, that it was possible that those protests had taken place.
The fact that independent information confirmed that protests had occurred in China in regard to a number of issues did not establish that the Applicant was a leader or organiser of those protests or had even participated in them.The Tribunal was not satisfied that the Applicant was detained as a result of his role in a protest in May 2000 or as a result of being identified as the leader of an anti-government movement. The Tribunal also was not satisfied that the Applicant had given credible evidence regarding his own circumstances in relation to his landholdings and events leading to the protests that he claimed were organised in 2005. The Tribunal referred at page 76 of the Court Book to information from external sources which indicated that it was likely that the authorities would have taken action to suppress protests in April and May 2005 rather than allow them to continue over a period of two months.
The Tribunal referred to independent information from the United States Department of State.The Tribunal went on to find, at page 77 of the Court Book, that it was not plausible that the Public Security Bureau (PSB) would draw up a black list with the Applicant’s name on it rather than take direct action to detain him. The Tribunal was not satisfied that the Applicant was a person of interest to the PSB or that he was placed on a black list by the PSB.
In summary, whilst the Tribunal found that the Applicant was a farmer from the Longtian area of Fujian province, the Tribunal did not accept that the Applicant was involved in organising and leading farmers’ protests in 2000 and 2005, or that he was detained as a result of his political activities in 2000, or that he was placed on a black list by the PSB as a result of his activism in 2005. For these reasons the Tribunal found that the Applicant did not have a well-founded fear of being persecuted if he returned to China for reason of a political opinion or any other Convention reason.
The Tribunal then went on to consider the Applicant’s explanation as to how he obtained a passport in the name of another person. At page 77 of the Tribunal’s decision, in the Court Book, the Tribunal said:
The information from external sources indicates that false documentation is particularly easy to obtain in China.
The Tribunal went on to find that it was not satisfied that the Applicant obtained a passport in another person’s name in order to be able to leave China without being detected by the authorities. The Tribunal found that the Applicant obtained a passport in the name of another person because it contained an Australian visa that he might not otherwise have been able to obtain. As a result, the Tribunal was not satisfied that the Applicant obtained the passport in another person’s name because of this fear of persecution for a Convention reason and because it was the only way he could leave China unhindered.
The Tribunal went on to note that there are penalties in China for using forged, or altered, or invalid, or other persons’ documents for entry and exit purposes in China and that if the applicant were to face penalties under Chinese law for using a passport in someone else’s identity to leave China, those penalties would be as a result of a law of general application and would not amount to persecution. The Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
I would comment that the external information to which the Tribunal referred about the obtainability of false documentation in China to which the Tribunal referred came from a seminar conducted by Professor David Goodman of the University of Technology Sydney for Members of the Refugee Review Tribunal in Sydney on 23rd February 2005.
The Tribunal affirmed the delegate’s decision not to grant the Applicant a protection visa.
The Application for Judicial Review
The Applicant commenced proceedings in this Court for review of that decision. In his amended application filed on 17th May 2006 he seeks a declaration that the Tribunal’s decision was invalid and contrary to law and orders setting aside the Tribunal decision and remitting the matter to a differently constituted tribunal for determination in accordance with law. The Applicant sets out two grounds for the application:
a)There was an error of law in the Tribunal’s decision constituting jurisdictional error.
b)There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
There are particulars provided which are in effect the grounds upon which the Applicant relies. I will set them out in order:
(i)The Applicant does not think that his review application had been considered properly and fairly by the Tribunal.
(ii)The Tribunal misunderstood his claim and made a mistake in relation to an important finding of fact.
The Applicant then sets out in sub-paragraphs (a) through to (i) inclusive a considerable amount of factual claims which he submits the Tribunal has completely misunderstood:
a)The Tribunal failed to comply with its obligations under
sub-s.424A(1) of the Migration Act.b)The Tribunal failed to comply with its obligations under s.425 of the Act.
c)In summary, the Applicant has never ever agreed that his application has been assessed by the Tribunal fairly and carefully.
The Applicant’s first claim, that his application was not considered properly and fairly, and his fifth claim, that his application has not been assessed fairly and carefully, appears to be basically similar, and I will deal with them together. In part this claim appears to be no more than an unparticularised challenge to the Tribunal’s findings of fact. If it is a claim of actual or apprehended bias on the part of the Tribunal, then it appears to fail for lack of evidence.
It is well established in decisions of the full Court such as SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 and SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 that allegations of bias or bad faith are serious matters involving personal fault on the part of the decision-maker. Such allegations are not to be lightly made and must be clearly alleged and proved.
The circumstances in which the Court will find an administrative decision‑maker had not acted in good faith are rare and extreme.
This is especially so where all that the Applicant relies upon is the written reasons for the decision under review. (See SBBS at [44]). As I said, this claim fails for lack of evidence, and in my view the grounds in particulars (a) and (i) have not been made out.Ground 2 is a claim that the Tribunal misunderstood the Applicant’s claim and made a mistake in relation to an important finding of fact.
It does not articulate any jurisdictional error but sets out a number of factual matters challenging the Tribunal’s findings. The ground appears to me to be no more than a claim for merits review, and it is clear from decisions such as Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 that findings of fact are matters for the administrative decision-maker. I am satisfied that there was evidence upon which the Tribunal could make the findings of fact which it did, and I agree with the submission from counsel for the Respondent that the Tribunal’s accurate summary of the Applicant’s initial statutory declaration shows that the Tribunal did understand and deal with the Applicant’s claims. Ground 2, or particulars 2, therefore fails.That leaves two matters to be considered, which are grounds 3 and 4. Ground 3 is an assertion that the Tribunal failed to comply with s.424A of the Migration Act. The Applicant submits that the issues mentioned in his second claim, which are factual matters, should be regarded as information subject to sub-s.424A(1) of the Act. The Applicant also claims that the Tribunal has also considered pieces of independent country information to assess his claims, such as the report of the United States Department of State and the information from Professor Goodman.
The Applicant claims that at some stage between the period when he attended the Tribunal hearing and gave evidence and when the Tribunal’s decision was handed down that the Tribunal should have given to him particulars of the information in relation to those matters, ensured that he understood why that information was information was relevant to the review and given him an opportunity to comment on it. Independent country information falls within the exception in
sub-s.424A(3)(a) of the Migration Act.The one matter that caused some concern was the Tribunal’s reference to information from Professor Goodman at what was an in-house seminar given to members of the Refugee Review Tribunal. Clearly that information was not information available to the general public and in some respects would appear not to be independent country information. I sought further submissions on that issue and directed that the First Respondent could forward further submissions, restricted to this point, by 5:00pm on 13th October and permitted the Applicant to make further written submissions by 5:00 pm on Wednesday 18th October.
Submissions on Section 424A Issue
Counsel for the First Respondent, Ms McWilliam, prepared detailed written submissions on this point, and those submissions were indeed filed on 13th October and are placed upon the Court record.
The Applicant did not file written submissions in reply. The detailed written submissions prepared by Ms McWilliam make the points that the information from Professor Goodman, that the false documentation is easy to obtain in China, was information that the Tribunal was not required to put to the Applicant for two reasons: first, that the information did come within the exclusion in sub-s.424A(3)(a) of the Migration Act; and second, that the information did not form part of the reason for the Tribunal Members’ decision to affirm the delegate’s decision.As to her submission that the information did fall within the exclusion in sub-s.424A(3)(a) of the Act, Ms McWilliam’s well-written submission referred first of all to the wording of the exclusion in paragraph (a) that the section does not apply to information that is not specifically about the Applicant or another person and is just about a class of persons of which the Applicant or other person is a member. Counsel referred to the decision of NARV vMinister for Immigration andMulticultural and Indigenous Affairs [2003] 133 FCR 89, where Ryan and Finkelstein JJ held at paragraph 32 that country information concerning the prevalence of document fraud in the appellant’s home country did not fall within the exception of sub-s.424A(3)(a).
Their Honours stated that the information was not just about a class of persons, it also went to a separate issue in the proceedings, the weight to be attached to particular documents relied on by the appellant.
Their Honours stated:That was clearly a matter on which the appellant should have been heard. As the country information upon which the Tribunal relied did not fall within the exception contained in sub-section 424A(3)(a), particulars of it should have been provided to the appellant.
Ms McWilliam points out in her submission that that reasoning was unanimously rejected by the full Court in VHAP of 2002 vMinister for Immigration andMulticultural and Indigenous Affairs [2004] FCAFC 82, where it was held that sub-section 424A(3)(a) imposes one test and does not contain two disjunctive elements. That view has since been followed in Minister for Immigration andMulticultural and Indigenous Affairs v NAMW and Others [2004] 140 FCR 572 at [64], [66] and [138], and VJAF v Minister for Immigration andMulticultural and Indigenous Affairs [2005] FCAFC 178 at [15]. The exclusion provision refers to information that is not specifically about an applicant or another person. It is, by way of contradistinction, about a class of persons of which an applicant or the other person is a member.
Counsel submitted, and in my view correctly, that the information in question, which was from an internal seminar, was information from an external source, albeit not information in the public domain. There is no difficulty with the Tribunal taking such information into account, as the Tribunal has the power to get any information that it considers relevant under s.424 of the Migration Act. (See also Win vMinister for Immigration andMulticultural and Indigenous Affairs [2001] 105 FCR 212 at [16]). The information, she submits, was not specifically about the Applicant, and the exclusion provision covers the case, so that no breach of s.424A is referred.
The other ground for the First Respondent’s submission is that the information did not form part of the reason for the Tribunal Members’ decision. Counsel submitted even if it is found that the information was not covered by any of the exclusionary provisions, there was still no obligation under s.424A, because the information did not form part of the reason for affirming the decision that was under review. I am referred to the decision of VAF vMinister for Immigration andMulticultural and Indigenous Affairs [2004] 206 ALR 471 and to the judgment of Finn and Stone JJ at [33], and VUAX v Minister for Immigration andMulticultural and Indigenous Affairs [2004] FCAFC 158 at [51] and [52], and also Minister for Immigration andMulticultural and Indigenous Affairs v NAMW [2004] 140 FCR 572 at 594.
Counsel submits that the information from external sources that false documentation is particularly easy to obtain in China only went to the Tribunal’s finding that the applicant obtained a passport in another person’s name as it contained an Australian visa that he might not otherwise have been able to obtain, not because of his fear of persecution for a Convention reason. The issue was considered by the Tribunal after it had already determined that the applicant did not have a well-founded fear of being persecuted if he returned to China. It was inessential to the Tribunal’s reasoning supporting his finding that the applicant did not have a well-founded fear of persecution, and on that basis it may be said that the information was not part of the reason for the Tribunal’s decision. In my view, that submission is correct and there is no breach of s.424A of the Migration Act in respect of both parts of that submission. Therefore, the claim of a breach of s.424A must fail.
The final ground, ground 4, claims breach of s.425 of the Migration Act. That ground says as follows:
In my case, although the Tribunal indeed invited me to appear before the Tribunal, but:
(a) the Tribunal failed to give me a genuine chance to give evidence in support of my claims, because I have strictly been restricted by the Tribunal only to answer its questions simply and shortly;
(b) the Tribunal failed to give me a genuine chance to present arguments relating to the issues arising in relation to the decision under review, because the Tribunal failed to inform me and failed to ensure me to understand what the issues are in relation to my review application during the Tribunal’s hearing.
I have previously held in SZIWL vMinister for Immigration & Anor [2006] FMCA 1416 at [25], [42], [44] and [45] that this ground misconceives the nature of s.425 of the Migration Act. First, as to the claim that the Applicant was not given the opportunity to say what he wanted to say, there is no transcript in evidence, and these complaints cannot be established without a transcript. (See NALA v Minister for Immigration andMulticultural and Indigenous Affairs [2004] FCAFC 241 at [21]). It is not unknown for applicants to be inappropriately focused in what they put forward, and the Tribunal must, to some extent, be entitled to control or direct an applicant’s evidence away from irrelevant material. The Applicant did not reveal any matter that the Applicant was not able to put forward. The Applicant has provided no evidence that the hearing was truncated or that he was in any way prevented from giving his evidence.
The second ground contains an apparent belief that the right under
sub-s.425(1) to present arguments relating to the issues arising in relation to the decision under review is a right of reply against the Tribunal’s findings. This is a misconception. Section 425 does not contain any right of reply. The Tribunal is not required to provide details, either by way of a running commentary or otherwise, on its determinations or thought processes. There is no breach of s.425 of the Migration Act.In all, I am satisfied that the Applicant’s application does not establish any of the jurisdictional errors claimed. I am mindful of the fact that the Applicant is not legally represented. I have read through the Tribunal decision and other material myself in order to ascertain whether any other jurisdictional error may be perceived. I am unable to discern any jurisdictional error. It follows that the decision is a privative clause decision as defined in sub-s.474(2) of the Migration Act. As such, under sub-s.474(1) the decision is not subject to the declaration or to the orders in the nature of certiorari and mandamus, which the Applicant seeks. The application will be dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 27 October 2006
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