SZIJL v Minister for Immigration
[2007] FMCA 2065
•14 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIJL v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2065 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no reviewable error – application dismissed. |
The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZIJL”.
| Migration Act 1958 (Cth), ss.91X, s.424A |
| Abebe v the Commonwealth [1999] 197 CLR 510 Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 Minister for Immigration & Multicultural & Indigenous Affairs v NANW (2004) 140 FCR 572 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs 214 ALR 264 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 Re Minister for Immigration & Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 SZBEL v Minister for Immigration & Multicultural Affairs (2006) 231 ALR 592 SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 |
| Applicant: | SZIJL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3446 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 14 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 14 December 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Counsel for the Respondents: | Mr J Mitchell |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The name of the first respondent be amended to “Minister for Immigration & Citizenship”.
The application filed on 22 November 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3446 of 2006
| SZIJL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
The applicant is a 35 year old male from Kunming City, Yunnan, the People’s Republic of China. He claims to have been a university student actively involved in the 1989 pro-democracy movement and was shortly thereafter threatened exclusion from his university. His parents were able to exert some influence and the applicant was allowed to continue his studies and later became employed by the government. The applicant was also later involved in the publishing of articles against Communist party interests.
In December 2004 while preparing an article in an internet café in Kunming, the applicant was detained by plain clothes police and taken to the office of the National Security Bureau. He states that he was attacked detained till April 2005 and verbally and physically attacked. His father was able to arrange his temporary release and provide him with a passport and visa enabling his travel to Hong Kong and onto Australia. The applicant fears he will be punished for his political opinion if he returns to China and consequently seeks protection in Australia.
The applicant arrived in Australia on 13 August 2005 and applied for a Protection (Class XA) visa on 12 September 2005. A delegate of the first respondent refused to grant a visa on 24 October 2005 and the applicant sought review of the delegate’s decision by the Refugee Review Tribunal (“Tribunal”). The Tribunal affirmed the delegate’s decision but this was set aside by the Federal Magistrates Court on 9 June 2006 and remitted the matter to the Tribunal to be determined according to law.
The second Tribunal rejected the applicant’s claim on 29 September 2006 (reference 060583419) which is the decision that is the subject of these proceedings.
The applicant appeared before the second Tribunal on 31 August 2006. After the second Tribunal hearing, the Tribunal sent a letter dated 4 September 2006 and pursuant to s.424A of the Migration Act 1958 (Cth) (“the Act”), inviting the application to comment on information that would be relevant to the applicant’s credibility and establishing his identity. The applicant responded on 18 September 2006 with the assistance of his newly appointed migration agent. On 7 October 2006 the Tribunal handed down its decision affirming the decision not to grant the applicant a protection visa. The Tribunal was not satisfied of the applicant’s identity nor that he was a witness of credit. Those findings were based on inconsistencies in the applicant’s presentation of his claims and the implausibility of his claims when considered in light of current information regarding the regulation of the internet and internet cafés in China.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”. This document was read into evidence.
The application filed in this Court on 22 November 2006 contains two grounds of review:
(a) there was an error of law in the Tribunal’s decision
constituting a jurisdictional error; and
(b) there was a procedural error in the Tribunal’s decision
constituting an absence of natural justice.
These grounds are supported by eight separate particulars.
Consideration
At the first Court date, the applicant indicated that he wished to participate in the Court’s legal advice scheme. He was given leave to file an amended application giving complete particulars of each ground of review relied upon, after receiving his independent legal advice.
The applicant confirmed that he had not filed an amended application or any written submissions in support of his original application. However, he said that he would read from prepared notes. The applicant said that his identity card was a key piece of evidence in these proceedings. He said that although it was easy to obtain forged documents in China, that these could be readily identified by a qualified document inspector. If the Tribunal had doubted the authenticity of his identity card, it could have had it examined.
The applicant also alleged that the Tribunal hearing was conducted in a manner that did not provide him with the opportunity to put forth arguments and evidence. However, this allegation is made in the absence of any transcript or tape of the proceedings. He further claims that a substantial part of the material supplied by his migration agent in response to the s.424A letter was ignored by the Tribunal. This claim was also made in the absence of any supporting evidence.
The Tribunal decision sets out the entirety of the contents of the s.424A letter and the applicant’s response to it. It also shows that the member discussed the issues also put to the applicant in the s.424A letter, and that his responses failed to adequately explain them. In the absence of any evidence that the applicant’s claims were overlooked, his complaint cannot be sustained. The claim that the Tribunal ignored his response to the s.424A letter is again raised in particular six of the application and addressed by Mr Mitchell in written submissions.
Ground one
There was an error of law in the Tribunal’s decision constituting a jurisdictional error.
Mr Mitchell submits that the Tribunal decision was based on a rational assessment of the credibility of the applicant’s claims: Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547 at 558-559. The Tribunal found that the applicant’s claims were not credible and the reasons for those findings are set out in its Findings and Reasons (CB 310-311). An adverse credibility finding and consequent rejection of an applicant’s claims is a matter for the Tribunal par excellence: Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [1999] 168 ALR 407. The Tribunal accepted some of the applicant’s claims, such as that he lived and worked in Kunming which suffered from water pollution and lack of democracy. The Tribunal also accepted that a person who posts material on the internet adverse to the Chinese authorities can suffer Convention-related harm for his/her political views. However, it found the applicant’s evidence vague, inconsistent and confused in relation to:
(a) The obtaining of a friend’s passport to travel out of China.
(b)That he had gone into hiding upon being released from detention but this was not recorded in his protection visa application.
(c) The inconsistent information in relation to which website that he
had used which led to his arrest.
(d) The claim that he had posted many articles on overseas
democracy sites.
(e)The implausibility of him posting anti-State material on the internet knowing that it was closely monitored by the authorities, and that the only precautionary step he took was that he “intended to leave the internet cafe after he had finished”.
(f)The claim that he had previously published articles about water pollution from the internet café using a pseudonym when internet café operators needed to keep the detailed identities of all users for 60 days.
(g) The explanation that as there was many internet cafes in China,
the authorities had insufficient resources to effectively monitor
the material being published.
I agree with the submissions made by Mr Mitchell that the reasons disclosed in the Tribunal’s Findings and Reasons were open to it on the material before it.
Mr Mitchell submits that it is not the function of this Court to review the fairness or correctness of these findings, see Ex parte Durairajasingham at [65]-[67] per McHugh J stated:
65.In my opinion, this passage correctly sets out the effect of s 430(1)(c) and (d). However, the obligation to set out “the reasons for the decision” (s 430(1)(b)) will often require the Tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons. But that said, it is not necessary for the Tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal. Indeed, to do so would be contrary to the direction in s 420 of the Act that:
“(1) The Tribunal, in carrying out its functions under this
Act, is to pursue the objective of providing a
mechanism of review that is fair, just, economical,
informal and quick.
2. The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules
of evidence; and
(b) must act according to substantial justice and the
merits of the case.”
66.In this case, the Tribunal made an express finding that it did not accept the prosecutor’s wife’s evidence. That was sufficient to comply with the requirements of s 430(1).
67.In addition, the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor’s claim that members of PLOTE tried to recruit him were “utterly implausible”. However, this was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged.
See also Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-37; Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [49], [108]-[109], [158] and [179].
Mr Mitchell further submits that the applicant is seeking a review of the merits of the applicant’s claims which is not available in this Court, and referred to Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [31] per Brennan CJ, Heerey, McHugh and Gummow JJ:
… any court reviewing a decision upon refugee status must be aware of turning a review of the reasons of the decision maker upon proper principles into a reconsideration of the merits of the decision.
I agree with Mr Mitchell’s submission that the Tribunal’s findings are not perverse, otherwise unreasonable or contrary to the probative material before it: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [368]; NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs 214 ALR 264 at [115].
Ground two
There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
Mr Mitchell submits in his written submissions that the Tribunal put to the applicant the determinative issues which arose in respect of his claims and invited comment on what it perceived to be information that would form part of the reason for the decision (CB 300-303). However, the Tribunal was not obliged, under either s.424A(1) or s.425 of the Act, to put its appraisals of the applicant’s credit to him, as the appraisals were not information: SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [18]; SZBEL v Minister for Immigration & Multicultural Affairs (2006) 231 ALR 592 at [43].
I agree with Mr Mitchell’s submission that the Tribunal was not subject to any procedural obligation other than Division 4 of Part 7 of the Act by the operation of s.422B: Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61; SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62 at [7]. Further, the applicant attended two Tribunal hearings and was given an opportunity to satisfy it of his claims. There is no evidentiary basis to infer that he was denied these opportunities: NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21].
The application then lists eight separate particulars which are general in nature and do not specifically identify which ground of review to which they relate. In some respects, they encompass new issues which warrants treatment of them as separate grounds.
Particular one
In deciding my application, Ms Lilly Mojsin, the Presiding Member of the Tribunal (“the Presiding Member”), has made a significant mistake; and she has definitely exceeded her powers and thus definitely committed a jurisdictional error, because she has definitely identified a wrong issue, ignored relevant material and made an erroneous finding.
Immediately prior to particular one, the applicant made the following statement under the sub-heading “The law”:
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks the wrong question, ignores relevant material, relies on irrelevant material or in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s powers: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration & Multicultural Affairs.
Particular one appears to rely on the principle stated in this passage without identifying where the alleged error occurred. Consequently, it is no more than a broad assertion. Particular one as currently drafted is meaningless and of no effect.
Particular two and three
2. The issues are:-
- It is a very and very common sense that Chinese ID Card is solely for the purpose to identify a person’s identity; and
- It is also a very and very common sense that there is a professional examination authority at the Department of Immigration, which is able to easily verify whether Chinese ID Card is genuine or not.
3. The question is that correctly identifying my genuine identity is particularly important for making a correct decision on my case. In relation to my Chinese ID Card, I have stated clearly that:-
“It may be true that Chinese documents are easily manufactured, but it is obviously difficult for a genuine Chinese ID card owing to its special security marks. I am sure that relevant Australian professional authority could easily identify the genuine Chinese ID card, and I am very much willing to authorise the Tribunal to send my Chinese ID card to a relevant professional authorities for a careful examination”.
In its Findings and Reasons, the Tribunal acknowledged that the applicant authorised it to send his Chinese identity card for examination and then found at CB 308:
As for his authorisation for the Tribunal to have his ID Card examined as it displays special security marks, even accepting that the applicant has produced a genuine Chinese ID Card in the name of Sheng Lin, without further information, I am not satisfied that the applicant is the person Sheng Lin named in that ID card.
I agree with Mr Mitchell’s submission that this is an allegation in respect of the fairness of the Tribunal findings. This was open to it based on the evidence presented to it. It is not the function of this Court to determine the fairness of that factual finding: Attorney-General (NSW) v Quin [35]-[36].
Particular four
It is definitely unacceptable that the Presiding Member refused to do anything with relevant professional authorities but just simply said, according to her imagination, that “… I am not satisfied that the applicant is the person Sheng Lin named in that ID Card….” Then, who am I?
I agree with Mr Mitchell’s submission that the applicant is obliged to satisfy the Tribunal as to his claims: Abebe v the Commonwealth [1999] 197 CLR 510 at [187]. There is no obligation on the Tribunal to conduct inquiries of the nature as suggested by the applicant: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [1], [42]-[43]. The Tribunal raised this with the applicant at both the hearing and in the s.424A letter, thereby drawing his attention to the problem and providing him with an opportunity to respond to its concerns. In support, Mr Mitchell referred to Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]:
43.This ground of error is misconceived for two reasons. First, there was evidence before the Tribunal to assist it in determining how to deal with the question of unreliability. There was the Turner report and the fact that the respondent did not object to providing evidence either at the hearing or by affidavit following the hearing. Secondly, whilst s 427 of the Act confers power on the Tribunal to obtain a medical report [15], the Act does not impose any duty or obligation to do so. Rather, s 426[16] provides that, even if an applicant requests that the Tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the Tribunal is not required to obtain such evidence. Thus, the Tribunal is under no duty to inquire.
Particular five
I have to doubt that the Presiding Member even did not know or did not intend to know who I was, how could she make a correct decision in my review application?
Mr Mitchell notes in his written submissions that the applicant’s complaint is not clearly stated but does appear to be an allegation of bad faith or capriciousness on the part of the Tribunal. An allegation of this nature bears a heavy onus: SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [43]-[48] per Tamberlin, Mansfield and Jacobson JJ who considered the relevant authorities:
43.First, an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved. Third, there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition. Fourth, the presence or absence of honesty will often be crucial; see SBAU at [27] citing SBAP v Refugee Review Tribunal [2002] FCA 590 per Heerey J at [49] and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 805 per Hely J at [25].
44. The fifth proposition is that 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; SBAU at [28] citing SAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 547 per Mansfied J at [35] and SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J.
45. Sixth, mere error or irrationality does not of itself demonstrate lack of good faith; SBAU at [29]. Bad faith is not to be found simply because of poor decision making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision maker did not undertake its task in a way which involves personal criticism; see NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 at [24] per Allsop J quoted with approval in NAAV at [107] by Black CJ.
46.Seventh, errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness; SBAU at [31].
47.Eighth, the Court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do and from the extent to which the reasons disclose how the Tribunal approached its task; SBAU at [32].
48.Ninth, it is not necessary to demonstrate that the decision maker knew the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power; SCAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1377 ("SCAZ").
In the “Invitation to Comment on Information” letter sent to the applicant by the Tribunal on 4 September 2006, the issue of the applicant’s identity was set out in considerable detail. The applicant was invited to comment and informed that this information was relevant to the decision as it indicated that the applicant was not a witness of truth and that he had created these claims to obtain a visa. These issues had already been raised with the applicant at the second Tribunal hearing of 31 August 2006. The applicant has only made a broad assertion that the Tribunal member in any way demonstrated bad faith. This particular/ground cannot be sustained.
Particular six
It cannot be denied that my response to the Tribunal’s letter, dated 4 September 2006, pursuant to s. 424A (“the 424A letter”) must not only provide further evidences in support of my review application but also present my arguments against the issues in relation to the decision. It is definitely unfair that the Presiding Member has completely ignored my further evidences and arguments, which, I have to say, is should be the evidence that the Presiding Member has intentionally exceeded her powers and thus definitely committed a jurisdictional error.
This issue was raised by the applicant in oral submissions and is referred to at [10]-[11] above. The applicant’s response did not allay the Tribunal’s concerns about his identity and his creditability (CB 303-305, 307-310). Mr Mitchell submits that the Tribunal has no obligation to make findings in respect of each factual contention when it already made findings about the applicant’s identity and credibility.
Mr Mitchell referred to Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68], [87]-[97]; Ex Parte Durairajasingham at [67]; Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8 at [24]; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [46]-[47]; Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 at [78]-[79].
Particular seven
There is an issue of s.424A of the Act. The Presiding Member has, in fact, failed to, honestly and genuinely and fairly, give to me, in the way that the Tribunal considers appropriate in the circumstances, particulars of the information in relation to the abovementioned issues or country information; failed to ensure, as far as is reasonably practicable, that I understand why it is relevant to the review; and failed to invite me to comment on it.
I accept the submission made by Mr Mitchell that the Tribunal was not obliged to put the independent country information to the applicant in accordance with s.424A(1) as that information was not specifically about the applicant: Minister for Immigration & Multicultural & Indigenous Affairs v NANW (2004) 140 FCR 572; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92.
Particular eight
There is also an issue of s. 425 of the Act. After my response to the 424A letter, the Presiding Member had more evidences and materials, but she still could not make a decision in my favour. If it is the case, the Presiding Member “must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”. Unfortunately, the Presiding Member failed to do so.
The applicant attended a hearing of the first Tribunal on 10 January 2006 and a hearing of the second Tribunal on 31 August 2006, at which times determinative issues were put to him. The second Tribunal raised the issue that the applicant’s evidence at the second hearing differed from that given at the first. The s.424A letter set out those differences and sought explanation. The applicant’s response included a statutory declaration briefly explaining the differences together with a substantial published and written material supporting the applicant’s claim as made at the second hearing. There is no obligation on the Tribunal to invite the applicant to a further hearing nor is he entitled to a running commentary on the material he submitted: SZBEL v Minister for Immigration & Multicultural Affairs at [48].
Conclusion
The applicant appeared at the hearing as a self-represented litigant assisted by a Mandarin interpreter. The Court has an obligation to independently consider whether there is any issue in the material before it that indicates jurisdictional error has occurred but was not identified or articulated by the self-represented litigant. Mr Mitchell, for the respondents, assisted the Court with written and oral submissions which addressed the two pleaded grounds and the eight particulars which were essentially further grounds of review. I am satisfied that the application does not identify any jurisdictional error. Neither is it apparent that any other ground of review exists to suggest that the Tribunal made a jurisdictional error in its decision-making process. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter and order the applicant to pay the first respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 14 December 2007
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