SZIMF v Minister for Immigration
[2006] FMCA 1400
•12 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIMF v MINISTER FOR IMMIGRATION | [2006] FMCA 1400 |
| MIGRATION – Review of Refugee Review Tribunal decision to affirm decision not to grant protection visa – second application by applicant, previous application in different name and alleging different nationality – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.474, 476, 476(2) Constitution of the Commonwealth of Australia p.75(v) |
| Plaintiff S157 of 2002 v The Commonwealth of Australia (2002) ALR 24 Craig v The State of South Australia (1995) 184 CLR 163 Muin v Refugee Review Tribunal [2002] 190 ALR 601 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | SZIMF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File Number: | SYG 718 of 2006 |
| Judgment of: | Lindsay FM |
| Hearing date: | 12 September 2006 |
| Date of Last Submission: | 12 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 12 September 2006 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms McNaughton |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the Application for judicial review is dismissed.
That the Applicant do pay the First Respondent's costs of and incidental to these proceedings fixed in the sum of $6,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 718 of 2006
| SZIMF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth). Pursuant to that section this Court has the same jurisdiction as the High Court in relation to matters of judicial review pursuant to paragraph 75(v) of the Constitution of the Commonwealth of Australia. The provisions of s.476(2) do not of course apply, this not being a primary decision but the provisions of s.474 do apply and the determination of the Refugee Review Tribunal in this case will be a privative clause decision and hence final and conclusive unless that decision can be shown to have been vitiated by or attended with jurisdictional error, as that concept was explained in the context of proceedings pursuant to Pt. 7 of the Migration Act in Plaintiff S157 of 2002 v The Commonwealth (2003) 195 ALR 24, and as explained more generally in other High Court decisions such as Craig v The State of South Australia (1995) 184 CLR 163.
The application for a protection visa was lodged on 17 November 2005. It was accompanied by a statement of the applicant of the matters said to ground his entitlement to a protection visa.
The application was rejected by the delegate for the Minister on a number of bases, one of which was the account given by the applicant as to his treatment by Chinese authorities being found not to be such as to give rise to a well-founded fear of persecution, a lack of credibility in relation to his knowledge of Taiwan which was said to be the focus and raison d'etre of his political activity and his lack of corroborating evidence.
He filed his application for review before the Tribunal and on 22 December 2005 the Tribunal sent him a notice that it was not able to make a decision in his favour based upon the material that had been provided to it and invited him to attend a hearing for the purposes of giving oral evidence, adducing evidence from other persons and making submissions and that is an opportunity that the applicant took up. However on 2 February 2006 his application was refused by the Refugee Review Tribunal.
The applicant lodged an application for a protection visa in 1997 in another name. The application was refused and the Tribunal had affirmed the decision of the delegate in relation to that refusal but in 2005, as an outcome to other proceedings about which I have not been given any information (and I do not require any). There does not seem to me to be any need for me to inquire into the circumstances of it, but the Tribunal decision in respect of the application lodged in that name was declared null and void towards the end of 2005. There then followed a fresh application, that is this application, for a protection visa by the applicant in a different name.
In his first application the applicant said that he was born in Bangkok in 1961. In the present application he said that he was born in the Fujian Province of China in 1966. The Tribunal noted his account in his application and in the evidence he gave before the Tribunal his having lived in Chengal City in the period 1991 to 1997, of his having married in 1991, of his having a mother, wife and daughter who live in China. It noted that in 1991 he established a trading company and at that stage began to co-operate in trade and in other ways with Taiwanese Chinese.
He says that in 1996 there were tensions expressing themselves in military activity between The People's Republic of China and Taiwan, and he says that at about that time he began to agitate for Taiwanese independence, or I suppose what must be interpreted as Taiwan's entitlement to continue to be independent. He says that he started an organization of about eight people: three local people and five Taiwanese, that the agitation consisted mainly of the printing of leaflets and the distribution of those leaflets and also the correspondence with PRP officials, but more especially officials in relation to his own province.
He says on account of that activity he was arrested in 1997 for a period of approximately two months. Upon his release he became fearful about the prospects of further persecution. The Taiwanese friends with whom he associated, and it is clear that in the course of his evidence before the Tribunal the focus was upon a particular Taiwanese friend, encouraged him to go to Thailand. They and he assisted him in travelling to Thailand and whilst there assisted him in obtaining a Thai passport which facilitated his travel to Australia. He was said by the Tribunal to be angry about the way in which his first application for protection visa had been conducted by his agent.
Ultimately the Tribunal was not satisfied that the applicant was a person to whom Australia owed obligations pursuant to the Refugees Convention and Refugees Protocol. It was not so satisfied because it is clear it disbelieved almost all of the key aspects of the applicant's account and they were essentially four in number.
Firstly, there was the Tribunal's concerns about the vagueness and confusion and internal inconsistency of the accounts the applicant gave in relation to the events associated with his stated business and political activity. The Tribunal did not accept his account of his group or his agitation or in relation to the circumstances of the formation of the group. It found his account in that regard to be vague and confused.
It found that his account of his business affairs was sketchy at best. His account of his relationship with his Taiwanese patrons or business partners or associates or however they might have been described was also ill-defined, and the Tribunal found that the function or the purpose or the mode of organization of the group that he had formed to be again attendant with a great deal of vagueness and lack of detail or coherence.
Secondly, it is plain that the Tribunal did not accept his account of his arrest and detention by Chinese authorities in 1997. The Tribunal says at the top of CB 68:
He gave varying dates for this arrest, stating that it happened in late 1996 and later that it was in February or March 1997. Given that this would have been a highly dramatic and significant incident in the applicant's life, the Tribunal is not satisfied that the applicant would have been so vague about its timing had it actually happened. His responses to the Tribunal's efforts to establish where it was that he had been held in detention appeared to be evasive and it was only after repeated questioning on this seemingly simple issue that he claimed to have been held in a detention centre in Chengal City. His explanation as to why the PSB would have arrested and detained him for two months, released him, and then tried to arrest him once more was confused and vague.
Thirdly, the Tribunal did not accept his account of his trip from China to Thailand or his activities within Thailand or his account of the assistance that was rendered by his Taiwanese friend in getting to Thailand and whilst he was there and in this regard the Tribunal made a finding that must be seen as quite critical to its determination of the applicant's entitlement to a protection visa. Again on CB 68 it said in reference to these matters, and in particular the assistance from his Taiwanese friend Liu:
The Tribunal has considered these claims of the continued intervention by Liu and is not satisfied that they are more than fanciful inventions designed to explain an apparently improbable series of events. The Tribunal is not satisfied that the applicant's account of his departure from China is true and is not satisfied that the reason he left was that he feared he would be arrested by the PSB.
Fourthly, in terms of these findings as to credibility, the Tribunal did not accept the applicant's account of how he had come into receipt of a Chinese identity card, the applicant's account having been that it was forwarded to him by his wife from China in October 1994 in circumstances where he said the card was obtained by bribery.
The Tribunal makes this finding at the bottom of CB 68, top of CB 69:
Whether or not such a bribe was paid, he did not indicate that his wife encountered any difficulty in obtaining this document. She was not interrogated about him or his whereabouts, pressured to make him return, threatened or in any other way harmed. If the applicant was genuinely wanted by the local PSB and they had interrogated his wife about him in the past as he claims, the Tribunal is not satisfied that it would have been possible for her to obtain his new identity card without difficulty of any kind.
So that is a summary of the Tribunal's discussion of factual issues and its concerns in relation to the credibility of the applicant's account in relation to various matters. To that concern was added the Tribunal’s concern about the way in which the applicant conducted himself at the hearing. At CB 69 the Tribunal notes that it was evident that a number of the applicant's responses at the hearing bore little relation to the questions put to him. The Tribunal was forced to ask him on several occasions to think about its questions and make sure he understood them before answering but these counsels seemed to have little effect.
When the problem first became evident early in the hearing, the Tribunal sought advice from the interpreter as to whether she believed it was related to difficulties of interpretation. She told the Tribunal that although the applicant spoke Mandarin with a heavy accent, she was having no real difficulty in communicating with him. She said she thought the reason his replies were non-responsive was that he was not listening to the questions. The Tribunal goes on in the next paragraph to say:
The Tribunal had the clear impression at a number of points during the hearing that the applicant's non-responsive answers owed more to evasiveness and a need to improvise than to any lack of comprehension or misunderstanding on his part.
What then is the applicant's claim as to the jurisdictional error into which the Tribunal is said to have fallen? He has relied upon two documents: his application filed on 10 March 2006 and an affidavit filed on the same day. Both documents set out the affidavit in a slightly fuller fashion, the two grounds of the application. The first ground can be relatively quickly dealt with. It was a complaint as to the Tribunal's attitude towards the question of his identity. As he put it in his application, the Refugee Review Tribunal has made the decision without knowing who I am. In the Tribunal's letter it says that the Tribunal has some doubts as to the applicant's real identity.
If the Refugee Review Tribunal is not sure who I am, I think it is the Refugee Review Tribunal's responsibility to find out my real identity before making any decisions.
Then it goes on to assert that that is a jurisdictional error. Certainly when one goes to the Tribunal's findings as to this issue on CB 66, it is clear that the Tribunal was not in any sense certain of the applicant's true identity and clearly harboured some doubts in relation to it, in particular against a background of country information indicating a relatively high incidence of document fraud in China. But ultimately the Tribunal accepted, as it said, for the purposes of the application that he was who he said he was in the current application, and in that regard it noted the near identical description of his current name with a name that he said was another name used by him in his first application.
It is not clear what the Tribunal meant to signify when saying that it accepted it for “the purposes of the application”, other than perhaps an indication that in so finding it was not finding with any particularly high degree of strength, but the Tribunal was indicating, in my view, quite clearly that it was not prepared to disbelieve the applicant when he said that he was the person described in his current application.
In effect the Tribunal was indicating that it was satisfied that he was who he says he was, and given that finding it is not possible to sustain the contention that such a finding is attended with jurisdictional error.
Paragraph (2) of his application says as follows:
I have been misled by the Refugee Review Tribunal. During the hearing I told the Refugee Review Tribunal that I could provide a document that I had been arrested by police in China. However, the Refugee Review Tribunal has made me believe that document is not important. This agreed Refugee Review Tribunal could make the decision without waiting for the document. I think that it is a jurisdictional error the Refugee Review Tribunal has made without telling me how important that document is.
The applicant's request to be able to have the determination of the Refugee Review Tribunal's decision delayed whilst he obtained some further information is dealt with in the Tribunal’s reasons at CB 65. The applicant had stated that he had material in China that he was waiting to be sent to him and he told the Tribunal it was material that related to how the government had persecuted him. And went on in response to further requests for information to say that it was a certificate showing that he was arrested. The Tribunal gave its reasons for not being prepared to delay the determination further, and in particular pointed to the fact that the applicant had been in Australia, on his own account, for eight years, that he had first applied for a protection visa some eight years ago and that had made a further application for a protection visa in late 2005.
There is nothing in the way in which the Tribunal dealt with this request which evinces any logicality or irrationality in its decision-making. It is a perfectly reasonable response, in my view, to the request, given the timing of it by the applicant, to refuse to delay the determination further whilst this document which could have been procured at any time in the previous eight years was procured by the applicant.
But of course the applicant's contention in his application, and in his affidavit, goes much further than merely suggesting that the error is constituted by the refusal to give the necessary delay in the determination. It said that the Refugee Review Tribunal misled him and appears to suggest that this act of misleading was constituted by advice to him that the document was not important. Nothing resembling such a contention appears in the Tribunal's reasons and the applicant has been on notice since May of this year that if he had intended to rely upon such an assertion in the transcript of the hearing before the Tribunal that he was obliged to produce a transcript in the appropriate form before this Court.
When questioned about this matter by me, or given an opportunity to develop the submission and to augment the assertions in relation to having been misled by the Refugee Review Tribunal, the applicant exhibited the non-responsiveness to which the Tribunal itself had given some attention in its reasons. When asked for details or to explain the way in which he had been misled by the Tribunal, the applicant initially gave answers which focused upon wholly unrelated matters. Finally, an answer was given by the applicant but in response to a general invitation to make submissions rather than in response to this particular matter that indicated an intention on his part, or a desire on his part, to have an opportunity to obtain further documents from China and for this hearing to be delayed to enable him to do so.
When he was asked what those further documents were, he described documents that related to the nature of his interaction with the Taiwanese persons with whom he said he was associated in the period leading up to his arrest and presumably following his arrest.
The documents he described were addressing an altogether different topic than the documents he said he required an opportunity to procure before the Tribunal handed its decision down. When confronted by me, or asked by me to explain why the documents were of a different character, he went further than simply giving an answer that was non-responsive, he gave no answer at all.
Doing the best we can to understand precisely what it is that is being agitated in the second ground of jurisdictional error set out in the application, we could I suppose read it firstly as some suggestion of procedural unfairness or irregularity in the way that has been dealt with in a number of cases, in particular in the High Court case of Muin v Refugee Review Tribunal (2002) 190 ALR 601, but of course there is altogether lacking from the applicants own account, and from any scrutinising of the way in which the Tribunal went about its business of any of the sorts of matters that would provide the factual substratum upon which a suggestion that he was dealt with unfairly or given an expectation by the Tribunal as to the relative unimportance of a document so as to persuade him not to pursue an opportunity to obtain the documents. That is altogether missing from any of the material available to this Court.
Indeed the applicant's complaint seems to be, on the one hand, that he was not given an opportunity to obtain the documents, despite pressing for it, but on the other hand to have being misled into not seeking the opportunity because of assertions on the part of the Tribunal that the documents were unimportant. There is an inconsistency between those two positions and it is not possible in my view to infer from any of the material available to me, anything resembling the sort of factual sub‑stratum that would be required before a Muin type procedural fairness argument could be sustained.
The suggestion that he is being misled also raises questions, I suppose, prima facie of the Tribunal having behaved, or having attended to, the discharge of its duties in bad faith, or at the very least without the requisite good faith. That, as the High Court and as the Federal Court have said on a number of occasions, is a very serious matter involving an allegation of personal fault on the part of the decision-maker. It is an allegation not to be lightly made and must be clearly alleged and proved and there is in common with any suggestion as to procedural unfairness , no set of facts or circumstances alleged upon which it is possible for this Court to infer that the Tribunal did not deal with this issue as with all other aspects of the applicant's application with the requisite good faith. So I am unable to find any basis in the contention that any of the Tribunal's dealings with the applicant in relation to the issue of the delay so further documents could be procured given rise to any suggestion of jurisdictional error.
The applicant did not agitate in his application or in his affidavit or before me seek to disturb any of the factual or credibility findings of the Tribunal or to invite me to take any view that was different to that taken by the Tribunal, and of course he was wise not to. This Court is not at liberty to review the factual findings of the Tribunal and so much is clear from a number of determinations of the High Court and the Federal Court, for example, Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. But in any event, having scrutinised the Tribunal's conduct of the matter and in particular its reasons for decision, I am unable to identify any illogicality or irrationality or any addressing of wrong or improper issues in the way in which it has gone about its tasks.
For all of the foregoing reasons then, the application for judicial review of the Tribunal's decision is dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate: Ms K Clarke
Date: 5 October 2006.
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