SZIMZ v Minister for Immigration - [2007] FMCA 1178

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIMZ v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1178

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate not to grant the applicant a protection visa – applicant is a citizen of the People’s Republic of China claiming fear of persecution for reasons that she is a Falun Gong practitioner – credibility – whether Tribunal failed to comply with Migration Act 1958 (Cth) – no jurisdictional error.

Migration Act 1958 (Cth), ss.420, 424A, 424A(3)(b), 424B, 424B(4), 474(2)

Minister for Immigration & Multicultural Affairs v Durairajasingham (1999) 93 FCR 220
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant:

SZIMZ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3624 of 2006

Judgment of:

Scarlett FM

Hearing date:

26 June 2007

Date of Last Submission:

26 June 2007

Delivered at:

Sydney

Delivered on:

26 June 2007

REPRESENTATION

The Applicant:

Appeared in person

Solicitors for the Respondents:

Ms McDonald

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The title of the First Respondent is changed to Minister for Immigration & Citizenship.
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $3,700.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3624 of 2006

SZIMZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”). The decision record bears the date
18^th October2006. The decision was handed down on 31^st October 2006. The date of signature of the document is clearly an error, and the operative date is 31^st October, the date on which it was handed down.
At page 109 of the Court book there appears a document headed "Material received after signing of decision". That document refers to a date of signature of 10^th October 2006, handing down date of
31^st October, and date material received 17^th October 2006.
The document is signed by the Tribunal member and the material parts of it read:
I have considered the above material. I have decided to recall my decision. Reasons: I have considered the additional material and revised my decision accordingly. Case note does not allow me to alter the decision record date.
Signed, dated 18^th October 2006.
The operative date of the decision is 31^st October 2006. In that decision the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection (Class XA) visa.
The background to this matter is that the applicant is a citizen of the People's Republic of China. She arrived in Australia on 1^st September 2005; she applied for a protection (Class XA) visa on 19^th September 2005. Her application was refused on 5^th October 2005, and the applicant sought a review of that decision by the Refugee Review Tribunal. The applicant attended a hearing of the Tribunal on
6^th December 2005, and on 23^rd January 2006 the Tribunal affirmed the delegate's decision.
The applicant sought judicial review of that decision from the Federal Magistrates Court, and on 2^nd July 2006 the Federal Magistrates Court made orders by consent setting aside the decision of the Tribunal and returning the application to the Tribunal for determination according to law. The Tribunal wrote to the applicant and invited her to attend a further hearing, and the applicant attended that hearing on
7^th September 2006.
At that hearing, as at her previous hearing, she gave evidence about having been a practitioner of Falun Gong since she came into contact with Falun Gong in October 2002. She claimed that after having set up a Falun Gong group and practised every week she was arrested and detained by the police for a period of one month. She claimed to have been hit and sworn at during that time. After she was released she was later taken into custody again for a further three weeks, where again she claimed to have been hit and sworn at. She claimed that after her release she was taken into custody again in 2004 and detained for another month. Eventually after her release she left China and travelled to Australia.
The Tribunal wrote to the applicant on 13^th September 2006, that was six days after the hearing. In that letter the Tribunal told the applicant that the Tribunal had information that would, subject to any comments that she might make, be the reason or part of the reason for deciding that she was not entitled to a protection visa. The information referred to included material referred to in the applicant's application for a protection visa, evidence given by the applicant to the Tribunal at the original hearing on 6^th December 2005, and evidence given by the applicant to the hearing of the Tribunal on 7^th September 2006.
The letter set out what the Tribunal considered were inconsistencies in the applicant's evidence and informed the applicant as to why that information was considered relevant, especially as it reflected on the credibility of the applicant's claims. The letter invited the applicant to comment on the information in writing and in English by 6^th October 2006.
A letter was forwarded to the Tribunal on 6^th October 2006. A copy of that letter appears at page 105 of the Court book. The letter is written in English, but signed by the applicant. The applicant told the Court that the signature on it is hers. That letter replied to the Tribunal's letter of 13^th September 2006 relating to inconsistencies in the applicant's evidence. The letter said, relevantly:
When lodging the application I wrote a statement in Chinese and then asked someone to translate it. Now, through a friend who can read English, I found out that there were a lot of inconsistencies during the English translation and my statement in Chinese. This could explain a lot of inconsistencies.
For example, I did not say I was detained three times, but the English translation said I was detained three times. I will ask a NAATI translator to translate my Chinese statement again and give you the new translation as soon as possible.
The letter finished by saying:
I will get someone to translate my original Chinese statement and then forward you a copy of the translation.
The Tribunal wrote to the applicant on 11^th October informing her that the decision would be handed down on 31^st October 2006.
On 17^th October a letter in English was forwarded to the Tribunal.
A copy of that letter appears at page 108 of the Court book. The letter is signed by one Lanshan Gao and is on the letterhead of the AuVis Asia Education and Trading Company. The letter said:
I am writing in my capacity as a NAATI level 3 translator, I have been asked by the applicant to do a proof reading of the English translation of her personal statement. I have before me her Court book which contains a statement in English on page 27 and 28, and a statement in Chinese on page 29 and 30. After reading both statements I found that the meaning in the middle part of the English translation departs slightly from the Chinese statement. To the best of my capacity I translate the corresponding part of the Chinese statement as follows.
There followed a paragraph setting out the new translation.
It was that document described as a post decision submission to which the Tribunal member referred in the memorandum to which I have previously alluded at page 109 of the Court book. It was that document that persuaded the Tribunal member to recall the decision, and the Tribunal member noted that she had considered the additional material and advised her decision accordingly. It is the revised decision that was handed down on 31^st October 2006. A copy of the decision record can be found in the Court book at pages 111 through to 125.
The Tribunal set out the applicant's claims in evidence from the protection visa application, the statement that attached to the application, the evidence from the hearing on 6^th December 2005, the evidence from the hearing on 7^th September 2006, the Tribunal's s.424A letter of 13^th September 2006 and the applicant's comments, both in the letter of 6^th October 2006 and the letter from the translator on 17^th October 2006.
The Tribunal found that the applicant was a citizen of the People's Republic of China and relied on the applicant's Chinese passport.
The Tribunal did not accept that the applicant had presented a truthful account of her past experiences in China. The Tribunal noted that the applicant demonstrated a rudimentary knowledge of Falun Gong, but did not accept that she was ever a regular or committed practitioner in China, or that she ever came to the attention of the Chinese authorities for practising Falun Gong, or that she was detained as claimed for practising Falun Gong.
The Tribunal referred to the applicant's contradictory evidence and her limited knowledge of Falun Gong. The Tribunal said at page 122 of the Court book:
The inconsistencies in the applicant's evidence about her practice of Falun Gong in China combined with the limited knowledge of Falun Gong she demonstrated at the Tribunal hearings leads the Tribunal to conclude that the applicant was not a Falun Gong practitioner in China. The Tribunal also does not accept that the applicant ever came to the attention of the Chinese authorities for practising Falun Gong as claimed.
The Tribunal then at pages 122 and 123 and 124 set out in some details what the Tribunal described as the applicant's inconsistent and contradictory evidence.
The Tribunal noted and accepted that the passing of time and traumatic events may lead to an inability to recall events and situations accurately, but went on to find:
However, there are so many inconsistencies in the applicant's evidence, and these inconsistencies are so significant, that the Tribunal does not accept the applicant's claims as set out in her protection visa application and the attached statement, and her claims as espoused in her evidence to the Tribunal at hearing on 6 December 2005 and 7 September 2006.[1]
[1] See Court Book page 124
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, and affirmed the decision not to grant the applicant a protection (Class XA) visa.
The applicant has sought judicial review of that decision by means of an application and affidavit filed on 6^th December 2006. The applicant has also filed a written outline of submissions. And the applicant's case can be found in the application and the submissions.
The applicant seeks orders in the nature of certiorari quashing the Tribunal decision, and mandamus compelling the Tribunal to rehear and re-determine the matter according to law.
The grounds of the application are said to be this:
The decision involves jurisdictional error in that:
(1) The Tribunal's findings that the applicant is not a Falun Gong practitioner and that the applicant has never been detained for practising Falun Gong in China were unreasonable, illogical and not based upon findings or inferences of fact supported by logical grounds.
Such findings did not follow the rule that if the Tribunal makes an adverse finding in relation to a material claim made by the applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true. See Minister for Immigration & Multicultural Affairs v Durairajasingham (1999) 93 FCR 220.
(2) The Tribunal failed to afford the applicant procedural fairness by preventing her from submitting further evidence and failing to invite her to further comment on important information. The applicant was given a s.424A letter to comment on relevant information, however, the 424A letter did not fully disclose all the adverse information that the Tribunal relied on in making the adverse finding.
The applicant made positive efforts to respond to the letter but the Tribunal was still not satisfied with her explanations. Under such circumstances the Tribunal failed to invite the applicant to provide further comments.
The applicant in an outline of submissions filed on 25^th June 2007 claims a breach of s.424A of the Migration Act 1958 (Cth) (“the Act”) in that whilst the applicant had submitted her new translation of the statement attached to her protection visa application on 17^th October 2006, the Tribunal after reading the new translation pointed out that the applicant has submitted a revised translation of part of her statement which appears to remove the description of one period of detention, which is still inconsistent with her evidence at hearing. The applicant complains that the Tribunal did not specify what new inconsistencies there were and failed to further invite the applicant to comment on such new inconsistencies.
The applicant also claimed that the Tribunal's decision was affected by prejudice that the Tribunal had already made its decision on
10^th October 2006, but the applicant provided new evidence, being the new translation, on 17^th October 2006, and after receiving the new evidence the Tribunal failed to give sufficient consideration to that new evidence. That is said to be a failure to comply with s.420 of the Act.
The applicant also claims that the Tribunal failed to extend the prescribed period within which the applicant should apply to the s.424A letter, and relies on s.424B(4) that says:
If a person is to respond to an invitation within a prescribed period the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.
The applicant attended Court and made it clear that although she does not read or write English she had consulted a friend who had arranged for someone to prepare documents for her. As far as letters were concerned she told the Court that at times she asked students to help her, or at other times she asked a friend to recommend someone.
She did not nominate who these people were. Originally she indicated that she had paid a friend to arrange everything, but resiled from that submission.
The applicant was not able to reply to any of the submissions in her outline of submissions or any of the contentions in her application.
She maintained first of all that there was an error in the translation of her statement in support of her protection visa application, and that she asked the Tribunal for an extension of time in order to provide a fresh translation. She also maintained, contrary to the facts, that the Tribunal made its decision before she was able to provide this translation.
As can be seen, that chronology is quite wrong.
Dealing with the grounds in the application. The applicant does not provide any particulars as to why the Tribunal's finding that she was not a Falun Gong practitioner and had not been detained for practising in Falun Gong on China was unreasonable or illogical or not based on findings or inferences of fact supported by logical grounds.
The Tribunal decision shows that the Tribunal made those findings because of the inconsistencies and significant discrepancies in the applicant's evidence. The Tribunal found that the applicant had not provided a truthful account of her experiences in China.
This is a credibility finding which was within the jurisdiction of the Tribunal to find. There is no failure to follow a logical or sound reasoning process. The applicant submitted that in reliance on the decision in Minister for Immigration & Multicultural Affairs v Durairajasingham (1999) 93 FCR 220, that if the Tribunal makes an adverse finding in relation to a material claim made by the applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might be possibly be true.
The fact is that the Tribunal had no difficulty in making the findings that it did with confidence, namely that it did not believe the applicants evidence and was not satisfied that the applicant had ever been a Falun Gong practitioner or had come under the notice of the Chinese authorities for the practice of Falun Gong, or had been detained at any time. There was no basis for the Tribunal to proceed to assess the claim on the basis that the claim might possibly be true, because the Tribunal was satisfied that it was not.
As to the ground that the Tribunal failed to afford the applicant procedural fairness by preventing her from submitting further evidence, the facts indicate that that is not the case at all. The applicant did submit further evidence, by means of a document on 17^th October 2006 containing a fresh translation of part of the applicant's original statement. It is quite clear that the Tribunal considered that material, the Tribunal recalled the decision and revised the decision based on what was in that late submitted document. Contrary to the applicant's oral submission, the Tribunal did not hand down its decision before the applicant had a chance to provide further evidence. Quite the reverse, in fact.
The applicant claimed that the Tribunal s.424A letter did not fully disclose all the adverse information that the Tribunal relied on in making the adverse finding. There is no particularisation of that.
The applicant claims that the Tribunal was not satisfied with her explanation and that the Tribunal should have invited the applicant to provide further comments. There is no obligation to do that whatsoever. Indeed, s.424A of the Act does not apply, in that the material referred to was all provided by the applicant and as such is information that the applicant gave for the purpose of the application.
It is specifically excluded by sub-s.424A(3)(b) of the Act.
The two grounds in the applicant's application therefore fail.
As to the matters contained in the applicant's submission, the first matter is a repetition of the s.424A point, which I have already considered and dismissed.
As to the second claim that the Tribunal's decision was affected by prejudice, that is of course a serious allegation, an allegation that the Tribunal did not act in good faith. That must be strictly alleged and strictly proved. The claim that the Tribunal had already made its decision on 10^th October 2006, but the applicant provided new evidence on 17^th October 2006, is not a correct statement of the facts.
The Tribunal had originally signed its decision on 10^th October 2006, but recalled that decision after receiving and considering the applicant's document of 17^th October 2006. There is no evidence of prejudice or bias or failure to act in good faith whatsoever, quite the reverse in fact.
The applicant claimed that after receiving new evidence the Tribunal failed to give sufficient consideration to the new evidence. There was no evidence of that whatsoever, the Tribunal considered that, but rejected it.
The applicant claims a failure to comply with s.420 of the Act, in particular a failure to comply with sub-s.2(b), which requires the Tribunal to act according to substantial justice and the merits of the case. There is no evidence that the Tribunal did not do so.
Again, quite the reverse.
The Tribunal did consider material submitted after the time for written submission, and referred to it in the judgment, but in the long run, it was not satisfied that that additional material was sufficient to make a finding in favour of the applicant. That is no more than a consideration of the evidence and that was entirely an appropriate step for the Tribunal to take.
Consideration of evidence and giving weight to particular evidence is a matter for the Tribunal. Allegation of a failure to give sufficient consideration to particular evidence is no more than an attempt at merits review, which is outside the jurisdiction of the Court. And I am referred by the solicitor for the first respondent to Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

The applicant complained that the Tribunal failed to extend the prescribed period within which the applicant should reply to the s.424A letter. The applicant refers to the provisions of s.424B(4) which says:
If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period and then the response is to be made within the extended period.
The fact here is that the applicant on 6^th October, which was the day for comments, replied and indicated that the applicant would ask a translator to translate her Chinese statement again and provide the new translation:
As soon as possible.
There was no specific request for an extension of time, except a statement that a further document would be provided as soon as possible. In any event that document was provided on 17^th October, 11 days later. The Tribunal did consider it. There is no failure to comply to s.424B(4), and in any event that subsection does not place any obligation to extend the period of time within which a person is to respond to an invitation. The subsection provides that the Tribunal may extend that period for a prescribed further period. In this case the Tribunal may not have sent a letter granting a specific extension of time, but the Tribunal did consider the additional evidence when it was submitted. There is no jurisdictional error.
In my view, all of the applicant's grounds fail. The applicant had a most sketchy idea of the documents that have been submitted on behalf of her own case, admittedly due to the fact that she does not read or write English, and all of the documents appear to have been prepared for her by someone else. The applicant had only the vaguest idea of what was in those documents. The applicant was not legal represented.
I have read through the Tribunal decision and supporting material myself, independently of either the applicant's claims or the first respondent's submissions in order to ascertain whether any arguable case may be made for any jurisdictional error, not necessarily one referred to by the applicant. I am unable to discern any.
In my view, no jurisdictional error has been made out. It follows that in the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by s.474(2) of the Act. Consequently, the decision is not subject to the nature of certiorari or mandamus, which the applicant seeks.
The application was commenced I note on 6^th December 2006, at which time the Minister's designation was Minister for Immigration & Multicultural Affairs, although the application describes the Minister as Minister for Immigration & Multicultural & Indigenous Affairs. In any event, the current title is Minister for Immigration & Citizenship, and I will make that order.
There is an application for costs on behalf of the respondent Minister. The amount sought is $3,700.00. Bearing in mind this is the matter's third time before the Court, it appears to me the amount sought is within the scale. The applicant has been unsuccessful in her claim, and in my view, it is a matter for costs.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 17 July 2007