SZIQT v Minister for Immigration
[2007] FMCA 762
•11 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIQT v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 762 |
| MIGRATION – Application for review of decision of Refugee Review Tribunal – bias – failure to consider application according to s.91R – whether Tribunal failed to comply with s.424A – no reviewable error. |
| Migration Act, 1958 (Cth), s.91R, s.424A |
| Bachir & Anor v Minister for Immigration & Anor [2007] FMCA 115 Devries v Australian National Railways (1993) 177 CLR 472 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 SZJMU v Minister for Immigration & Anor [2007] FMCA 706 WAMI v Minister for Immigration & Anor [2007] FMCA 759 |
| Applicant: | SZIQT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG1 of 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 15 May 2007 |
| Date of Last Submission: | 15 May 2007 |
| Delivered at: | Perth |
| Delivered on: | 11 June 2007 |
REPRESENTATION
| Applicant: | In Person (with the assistance of an interpreter) |
| Counsel for the Respondents: | Mr P. Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the name of the First Respondent be amended to read “Minister for Immigration and Citizenship”.
That the Application be dismissed.
That the Applicant pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG1 of 2007
| SZIQT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
The Applicant made application to this Court on 2 January 2007 for judicial review of a decision made by the Refugee Review Tribunal (“The Tribunal”). That decision was made on 5 December 2006 (“Tribunal Decision”).
The application was amended on 10 April 2007. It is that amended application (“Application”) which is the Application before the Court.
Grounds for Application and Relief Sought
The grounds for the Application are as follows:
a)that the Tribunal was biased against the Applicant and failed to consider his claims according to s.91R of the Migration Act, 1958, (Cth) (“Migration Act”);
b)the Tribunal failed to assess the chance of the Applicant’s persecution on his return to China;
c)that the Tribunal failed to consider the Application in accordance with s.424A of the Migration Act, and that the Applicant was not notified of the reason or part of the reasons for affirming the decision of the delegate (“Delegate’s Decision”).
The particulars of the s.424A ground are set out in the Application as follows:
“(a)The only information before the Tribunal was that contained in the First Respondent’s file and that given to the Tribunal by the Applicant.
(b)The Tribunal was required to provide particulars of the information that was the reason, or part of the reason for affirming the decision. Migration Act 1958s. 424A. [sic] The Tribunal also was required to explain why the information was relevant and provide the applicant with an opportunity to comment upon it.
(c)The above particulars had to be provided in writing SAAP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDUSTRIAL [sic] AND ETHNIC AFFAIRS (2005) HCA 24 (18 May 2001)
…
(d)The information to be given extends to that information given by the Applicant o [sic] the First Respondent as part of his application for a visa.
…
(e)The Tribunal based it’s findings on the information, or lack of information, contained in the Applicant’s application for a visa and was required, by S.424A, to give particulars of the information, explain why the information was relevant and provide the Applicant with an opportunity to comment upon it. The Tribunal’s failure to so act was a jurisdictional error.”
Background Facts
On 22 September 2003 the Applicant applied for a Protection (Class XA) Visa: CB 1-24. The application for a Protection Visa was accompanied by a statutory declaration from the Applicant (“Statutory Declaration”): CB 25-30.
In the Statutory Declaration the Applicant weaves a tragic tale. The Applicant operated a restaurant: “It was not a big restaurant, but the business was very successful owing to delicious meals and excellent service”: CB25, para. 3. But, on a hot August night in 1999, five policemen came to the restaurant demanding a table. The Applicant says that the policemen took affront when seated in the waiting area because there was no big table available for them. They slapped the Applicant around and destroyed the restaurant’s interior on the pretext of a search for troublemakers. In the chaos which ensued a young staff member was seriously injured by a gunshot from the police. He died three days later in hospital: CB25-26, Statutory Declaration, paras. 5-6. The Applicant organised a peaceful protest in front of the local police station later in August 1999. The protest got out of control. A police car was burnt and all windows in the police building were broken. The Applicant and ten others were arrested: CB 26-27, Statutory Declaration, para. 8. The Applicant was detained and his restaurant sold as compensation for loss and damage of the police station. The Applicant was detained from the end of August to December 1999. Upon his release he found that his restaurant had been sold to a cousin of the senior police officer on duty on the night of the restaurant riot: CB 27, Statutory Declaration, paras. 9-11. The Applicant pleaded his innocence to various government bodies from January 2000 to October 2001. Eventually, in order “to maintain the normal life” of his family he found a job as a construction labourer: CB 27-28, Statutory Declaration, para. 24. In June 2002 the construction team on which he worked finished a project for a big state owned factory. But the construction workers were not paid. In September 2002 the state owned factory was bankrupted. Together with a Mr Z the Applicant organised 300 protesters to have a peaceful sit in protest from 1-3 November 2002. The Applicant was arrested that evening at home, in the company of Mr Z, and denounced for organising anti-government activities. The Applicant was detained until the end of February 2003: CB 28-29 Statutory Declaration, paras. 19-22. The Applicant who had arranged a passport in April 2002: CB 28, Statutory Declaration para. 17, obtained a visa to come to Australia some time in April 2003, but because of the SARS crisis, he was unable to come to Australia until 15 September 2003: see CB 30, Statutory Declaration, para. 24.
While the Applicant’s application for a protection visa was being processed he was granted a Bridging Visa Class WA with permission to work: CB 37-38, Letter to Applicant from Department of Immigration & Multicultural & Indigenous Affairs, 16 October 2003. It is appropriate to note that the Applicant was advised:
“You have been found to be eligible for a Bridging Visa Class WA with permission to work in connection with your Protection Visa application.”
On 22 October 2003 a delegate of the First Respondent found that the Applicant was not a person to whom Australia had protection obligations, and accordingly refused a Protection Visa: CB 40-50. A letter of advice from the Department concerning the refusal to grant a protection visa indicated that the Applicant had been granted a Bridging Visa Class WA with permission to work allowing the Applicant to remain in Australia for 28 calendar days after notification of the decision. On 30 August 2004 the Tribunal affirmed the decision of the Delegate of 16 October 2003 to refuse the Applicant a Protection Visa. The Tribunal’s decision of 23 September 2004 was quashed, and a writ of mandamus issued to the Tribunal requiring it to determine the application for review according to law. Orders, by consent, in those terms were made by this Court on 17 October 2005: CB 67.
The Tribunal reconsidered the matter. On 28 February 2006 the Tribunal (in a decision handed down on 29 March 2006) affirmed the decision not to grant the Applicant a Protection Visa: CB 68-82. On 3 July 2006 this Court quashed the Tribunal’s Decision made on 28 February 2006 and handed down on 21 March 2006, and issued an order in the nature of mandamus requiring the Tribunal to review according to law the decision made by the Delegate of the First Respondent on 22 October 2003. The Court’s orders specifically noted that the First Respondent accepted that the application must be allowed for the reasons contained in the decision of the Full Court of the Federal Court in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2.
The Applicant’s application for review of the Delegate’s Decision of 22 October 2003 came before a third hearing of the Tribunal on 2 November 2006. On 13 November 2006 the Tribunal signed the Tribunal Decision, which it handed down on 5 December 2006, affirming the decision not to grant the Applicant a Protection Visa: CB 107-130. The Tribunal Decision is the subject of the Amended Application.
Tribunal Decision
The Tribunal dealt with each of the factual matters raised by the Applicant: CB 125-129.
The Tribunal made specific findings concerning the Applicant’s credibility, adverse to him, as follows:
Whilst the Tribunal is satisfied that the applicant may have owned a restaurant in Qingdao city, in August 1999, the Tribunal cannot be satisfied that the applicant has been truthful about any of the events thereafter. The applicant’s claims and evidence in this regard are implausible, contradictory, internally inconsistent and moreover, inconsistent with the independent evidence.
At hearing, in delivering his evidence, the Tribunal found the applicant to be evasive and uncooperative.
Tribunal cannot be satisfied that the applicant has been truthful in his claims and evidence, and cannot be satisfied that he has any claim to have a well founded fear of persecution for a Convention reason.
Specifically, the Tribunal does not accept as credible or plausible:
· The applicant’s account of events in August 1999 and their aftermath
· The applicant’s claims regarding his involvement with a Mr. Z
· The applicant’s characterisation of himself as being a strong supporter of democracy
· The applicant’s claims to have been involved in any political protest/union activities
· The applicant’s letter sent after arrival in Australia: CB 124-125.
The Tribunal summarised its findings, and reached conclusions and a decision, as follows:
Given the significant adverse findings in credibility in regard to the matters mentioned above, the Tribunal cannot accept as credible the applicant’s claims that the PRC authorities have any on-going interest in him whatsoever.
At the conclusion of the hearing (2 November 2006), the Tribunal pointed out to the applicant that there were contradictions in his evidence. The Tribunal noted the overall implausibility of his claims and their lack of consistency with the independent evidence. The Tribunal indicated that it had grave adverse credibility concerns with his claims and evidence.
Considering the applicant’s mendacity on not only the essential elements of his claim, but other aspects of his claims discussed above, as well as well as the internal inconsistencies that arose at hearing and the inconsistency with the independent evidence, the Tribunal finds that the claims of harm, and threats of harm, by the PRC authorities to be a fabrication. Given the significant adverse findings on credibility in relation to the applicant, the Tribunal cannot be satisfied that the applicant has a real chance of being persecuted for any convention reason in the PRC in the reasonably foreseeable future and is therefore not satisfied that the applicant’s fear of persecution for a Convention reason is well founded.
CONCLUSIONS
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa: CB 130.
Credibility findings are matters for the Tribunal. This Court ought not interfere with a finding as to credibility:
“unless it is apparent that there is no basis on which a reasonable person could reach the finding on credibility, for instance where it is clear that the Tribunal acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable”: SZJMU v Minister for Immigration & Anor [2007] FMCA 706 at para. 13 per Turner FM (citing Devries v Australian National Railways (1993) 177 CLR 472 at 479).
Having:
a)read the Tribunal’s decision;
b)regard to the Tribunal’s detailed analysis of the evidence of each of the Applicant’s claims made before the Tribunal; and
c)regard to the nature of the credibility findings following that analysis by the Tribunal (namely, that the Applicant’s claims and evidence were “implausible, contradictory, and internally inconsistent and moreover, inconsistent with the independent evidence”: CB 124),
the Court does not consider that the Tribunal acted or made findings in a manner inconsistent with the principle set out at para. 14 above. Rather, the credibility findings made by the Tribunal were clearly open on the available evidence before the Tribunal.
Analysis of Grounds for Application
Bias
The Tribunal Decision demonstrates that the Tribunal considered each of the Applicant’s claims, and that it did so in some considerable detail.
In WAMI v Minister for Immigration & Anor [2007] FMCA 759 at paras. 14-15 per Lucev FM this Court said:
To prove actual bias on the part of the Tribunal requires evidence of a state of mind such that the Tribunal is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 per Gleeson CJ and Gummow J; [2001] HCA 17 at para 72 per Gleeson CJ and Gummow J. Similarly, a reasonable apprehension of bias requires a reasonable apprehension of such pre-judgment: Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 at 434 per Gleeson CJ, Gaudron and Gummow JJ; [2001] HCA 28 at para 27 per Gleeson CJ, Gaudron and Gummow JJ.
The Tribunal Decision does not demonstrate pre-judgment, nor does it give rise to reasonable apprehension of pre-judgment. Rather, the Tribunal’s detailed questioning of the Applicant demonstrates that the Tribunal gave the Applicant every opportunity to persuade the Tribunal (to the requisite degree of satisfaction) that he had a well-founded fear of persecution for a Convention reason. The Applicant’s allegation of bias has not been made out.
The law remains the same, and in this case the circumstances of the Tribunal’s consideration are very similar, such that the same result must follow: the Applicant’s allegation of bias has not been made out.
Failure to consider claims according to s.91R
The Applicant’s claim is misconceived. Whether the treatment suffered or feared by the Applicant amounted to persecution, or fear of persecution, under s.91R of the Migration Act simply did not arise, as the Tribunal did not accept the Applicant’s claims and evidence. Thus, the Tribunal was not, and could not have been, satisfied that the Applicant had a well founded fear of persecution. The Applicant has not made out this ground.
Failure to assess the chance of the Applicant’s persecution on his return to China
In substance the ground is a longer hand form of the preceding ground. The Court repeats what it said at para. 19 above. Thus, the Applicant has not made out this ground.
Failure to comply with s.424A
In Bachir & Anor v Minister for Immigration & Anor [2007] FMCA 115 at para. 32 per Lucev FM (“Bachir”), this Court said:
The cases in relation to ss.359A and 424A make it clear that:
(1)strict compliance with the section is necessary, and it is a denial of natural justice and an error going to jurisdiction not to strictly comply, which error invalidates the decision being reviewed: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162, at 183 per McHugh J; [2005] HCA 24 at para 77 per McHugh J; ALR at 203 per Kirby J; HCA at para [173] per Kirby J; ALR 211 per Hayne J; HCA at para 203 per Hayne J. (“SAAP”); SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 at 253 per Weinberg J; [2006] FCAFC 2 at para 163 per Weinberg J, (“SZEEU”); SZCNG v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 503 at paras 62-64 per Barnes FM (“SZCNG”);
(2)the question to be asked is “whether the information in question was a part (that is any part) of the reason for affirming the decision” SZEEU FCR at 262 per Allsop J; FCAFC at para 215 per Allsop J;
(3)the whole of the reasons need to be considered in context to ascertain the reason(s) for the decision, and whether any particular information was a part of the reasoning for the decision: SZEEU FCR at 262 per Allsop J; FCAFC at para 216 per Allsop J;
(4)the fact that the information was known to the review Applicant is irrelevant, what matters is the review Applicant’s understanding of why the information is relevant to the review, and that the review Applicant is invited to comment on that information: s.259A(1)(b) and (c), Migration Act, SZCNG at para 41 per Barnes FM;
(5)the fact that the information is given to the Tribunal by a person called by the review Applicant, and/or that the information is conveyed to the Tribunal by a person called in the presence of the review Applicant, does not alleviate the Tribunal’s obligation to give the information to the review Applicant : SAAP, ALR 178 per McHugh J; HCA at para 63 per McHugh J; ALR 203-204 per Kirby J; HCA at paras 175-176 per Kirby J; ALR at 204-207 per Hayne J; HCA at paras 182-191 per Hayne J; Applicant M164 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16 at paras 99-101 per Lee J; SZCNG at paras 42-64 per Barnes FM (and in particular at para 64: “information is not given by the Applicant where it is given orally by a third party in response to questioning at a Tribunal hearing”);
(6)mere information or adoption of evidence by the review Applicant is not a giving of the information by the Tribunal: SZCNG at paras 65-66 per Barnes FM (and cases there cited); see also SAAP, ALR at 203 per Kirby J; HCA at para 175 per Kirby J illuminating practical reasons for the existence of such a rule; and
(7)the affirmation of specific facts by an Applicant in response to specific questions from the Tribunal is the giving of information by an Applicant (which will be covered by the exclusion in s.359A(4)(b) (or s424A(3)(b))): SZEEU, FCR at 242 per Moore J; FCAFC at para 91 per Moore J, FCR at 254 per Weinberg J; FCAFC at para 173 per Weinberg J; FCR at 268 per Allsop J; FCAFC at para 264 per Allsop J.
Particulars (a) to (d) of the Application in relation to this ground are in fact more in the nature of submissions, while particular (e) particularises the Applicant’s complaint.
Section 424A of the Migration Act provides as follows:
424A Applicant must be given certain information
(1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3) This section does not apply to information:
(a) 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; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non‑disclosable information.
The essence of the allegation in particular (e) is that the Tribunal based its findings on information, or a lack of information, in the Applicant’s application for a visa, and that under s.424A of the Migration Act the Tribunal ought to have given particulars of that information to the Applicant.
A close examination of the Tribunal’s reasons for decision demonstrate however that the Tribunal did not use the information the Applicant asserts it used. The Tribunal’s reasons show that its decision relies upon information gathered from the Applicant during the hearing: see, for example:
a)At CB 125 under the heading “The events of August 1999 and their aftermath”:
i)“The applicant’s evidence at hearing”;
ii)“The applicant’s evidence was”;
iii)“The applicant gave evidence”;
iv)“The applicant’s evidence was to the effect that”;
v)“The applicant stated at hearing”;
b)at CB 126-127 under the heading “The applicant relationship with Mr Z”:
i)“The applicant’s claims and evidence”;
ii)“The Tribunal asked the applicant a number of questions”;
iii)“The applicant was unable to answer any of the Tribunal’s questions”;
c)at CB 127 under the heading “The applicant’s “strong support” for democracy”:
i)“The Tribunal asked the applicant about”;
ii)“The applicant’s claims and evidence were to the effect”;
iii)“In light of the applicant’s evidence”;
d)at CB 127-129 under the heading “The applicant’s claims to have been involved in any political protest/union activities”:
i)“The applicant’s claims and evidence at hearing were to the effect”;
ii)“The Tribunal finds that the applicant’s evidence about”;
iii)“The applicant gave evidence that”;
iv)“The applicant initially gave considerable detail”;
v)“The applicant’s explanation”;
e)at CB 129-130 under the heading “Sur Place claims: The letter”:
i)“The applicant’s claims and evidence are to the effect”;
ii)“The Tribunal noted the applicant’s evidence at hearing”;
f)at CB 130 under the heading “Falun Gong”:
i)“The applicant gave evidence at hearing”.
It is also apparent that the Tribunal “asked” the Applicant about his experience, and did so in considerable depth: CB 114-122.
Based on a reading of the Tribunal Decision as a whole it is apparent that the Tribunal:
a)asked the Applicant for information in the hearing;
b)received the information from the Applicant in the hearing; and
c)made the Tribunal Decision based on the information received.
The information that the Tribunal based the Tribunal Decision upon was therefore information that the Applicant gave the Tribunal for the purposes of the Application, and is not information for the purposes of s.424A of the Migration Act: s.424A(3)(b); SZEEU, FCR at 242 per Moore J; FCAFC at para. 91 per Moore J; FCR at 254 per Weinberg J; FCR at 268 per Allsop J; FCAFC at para. 264 per Allsop J; Bachir at para. 32 per Lucev FM.
For those reasons, this ground is not made out by the Applicant.
In any event, the Tribunal did not believe the “information” provided by the Applicant. Therefore, it could never be information for the purposes of s.424A(1)(a) of the Migration Act because the Tribunal did not rely upon the “information” as it did not believe the Applicant’s evidence. For this reason also this ground is not made out by the Applicant.
Conclusions
None of the Applicant’s grounds have been made out.
The Application will be dismissed and the Applicant will pay the First Respondent’s costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: M Hewitt
Date: 11 June 2007
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