SZIRU v Minister for Immigration - [2008] FMCA 846

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIRU v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 846

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 “SZIRU”.

Migration Act 1958 (Cth), ss.91X, 36, 48B, 417, 422B, 424A, 425

Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35

Applicant:

SZIRU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 470 of 2008

Judgment of:

Lloyd-Jones FM

Hearing date:

28 April 2008

Delivered at:

Sydney

Delivered on:

27 June 2008

REPRESENTATION

Applicant:

The applicant appeared in person with the assistance of a Mandarin interpreter.

Counsel for the Respondents:

Mr M P Cleary

Solicitors for the Respondents:

Australian Government Solicitors

ORDERS

The application filed on 27 February 2008 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 470 of 2008

SZIRU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

The male applicant was born in 1963 in Shanghai and is a citizen of the People’s Republic of China (PRC). The applicant claims that he was educated between the years of 1970 and 1984 including tertiary education at Shanghai Electronic Engineering College.
The applicant attached a lengthy statement to his Protection (Class XA) visa application concerning claims that he is a traditional Falun Gong practitioner. However, in the applicant’s letter to the Minister on 21 August 2006, he claimed that the statement had been lodged falsely by his original migration agent and that he left Shanghai in order to invest 270,000 RMB in a business venture in Changshu. The applicant claimed that he was convinced by Ms Wang Aihu who he had met over the internet. Ms Wang indicated that she was involved in a business venture with her elder sister and brother in law and that the business was very large enabling them to double their profits every year. The applicant claimed that upon arrival in Changshu, he was presented with a factory and that Ms Wang, her sister and brother-in-law had asked him for money for a business licence. The applicant claims that they took 825,000 RMB from him over the time span of a year.
The applicant claims that his claim was rejected by many government authorities and was threatened by the “Three Gang” who had taken his money. Consequently, the applicant is claiming persecution and is seeking protection in Australia.
The applicant arrived in Australia as a visitor in February 2004 and applied for a Protection visa on 19 February 2004. A delegate of the Minister refused his application and the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of the decision. The Tribunal affirmed the delegate’s decision and the applicant applied to the Federal Magistrates Court for a review of the Tribunal’s decision. This application was dismissed.
The applicant was detained on 1 March 2006. On 9 August 2007, the applicant lodged a new Protection visa application with the Minister’s consent under s.48B of the Migration Act 1958 (Cth) (“the Act”). A number of s.48B applications were made initially on 21 August 2006 and 10 October 2006 and then on 5 February 2007, 5 March 2007, 3 May 2007 and 9 August 2007. The Minister decided to allow the applicant to make the further protection visa application. The application was dismissed and the applicant applied to the Tribunal a second time. The Tribunal again affirmed the decision of the Minister not to grant the protection visa.
A Court Book (“CB”) prepared and filed by the respondents is marked Exhibit “A” and is the only evidence before the Court.
At the first Court date, the applicant indicated that he wished to participate in the scheme that gives unrepresented applicants in refugee matters independent legal advice on the prospects of success of their appeal. The applicant was allocated a panel advisor to provide this advice. The applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon by 21 April 2008. Nothing was filed.

Tribunal decision

A delegate of the Minister refused the second protection visa application on 26 September 2007 and the applicant applied to the Tribunal for review of that decision on 3 October 2007. On 19 December 2007 the applicant attended a hearing of the Tribunal and the Tribunal handed down its decision on 21 December 2007. This decision was recalled as it was made prior to receiving further information from the applicant, which was foreshadowed during the hearing. There was a further hearing on 29 January 2008. On 30 January 2008, the Tribunal forwarded an “Invitation to Comment” letter in accordance with the provisions of s.424A of the Act. The applicant replied on 6 February 2008. On 12 February 2008, the Tribunal handed down its decision (reference number 071765910) and it is this decision that is the subject of this judicial review.
The Tribunal affirmed the delegate’s decision for the following reasons:
a)the Tribunal found that the applicant was not a witness of truth (CB 433.6);
b)this finding was based on findings of inconsistencies in the applicant’s evidence given to the Tribunal (CB 424-431);
c)based on the credibility finding, the Tribunal did not accept that the applicant was a democratic political activist or that he held the political opinion he claims to hold;
d)the Tribunal did not accept that there was a real chance the applicant would suffer persecution in China based upon his claim that his former business partner had reported him to the Chinese authorities (CB 433-435);
e)the Tribunal did not accept that there was a real chance that he would be persecuted by reason of his real or imputed political opinion and did not accept the claims that there was collusion before the applicant’s former business partner and the Public Service Bureau (PSB) (CB 435) ; and
f)the Tribunal did not accept that the applicant would be persecuted if he returned to China because he was a failed asylum seeker.

Grounds of review

The application filed on 27 February 2008 contains three grounds of judicial review:
1. The Migration Act 1958, s (36) was not observed properly by the RRT Member T Delofski.
2. The RRT deprived me of natural justice.
3. The departmental officials were misleading me prior to my application to RRT.

Consideration

At the first Court date, orders were made for the applicant to file a short written outline of submissions and a list of authorities that he wished to rely upon. This order was not complied with. However, when invited to make oral submissions, the applicant then proceeded to provide considerable details.
The applicant initially sought to explain the circumstances surrounding the supply of his statement (“My Statement” CB 8-88) in his second Protection visa application filed on 31 March 2006. At that stage the applicant was held in detention in Villawood after being detained on 1 March 2006. The applicant claimed that while in detention he had discussed his situation with a relative in China. A letter was prepared based on that discussion and faxed to the detention centre. With the assistance of another detainee at the centre, the letter was translated and further information added. The applicant explained that the contents were incorrect due to a certain misunderstanding by the relative in China who took the phone call as well as in the subsequent translation and additions. The applicant claimed that he requested the Tribunal not to take the contents of that letter into consideration.
The next point that the applicant addressed was in respect to the letter forwarded to the then Minister, Senator Vanstone, on 21 August 2006 (CB 102-110). The applicant indicated that the Tribunal stated that it had been advised by the Department of Foreign Affairs & Trade that documents could be bought or forged in China and that the material that appeared in this letter could have been sourced in such a way. The applicant claims that advice from the Department of Foreign Affairs & Trade was too general and was nothing more than a guide. If the Tribunal accepted that advice and rejected the contents of the letter, it was denying the applicant the opportunity to put forward facts that clearly related to him.
The third issue raised by the applicant concerned the applicant’s dealings with the migration agent that he obtained advice from when he first came to Australia in February 2004. This migration agent has subsequently been deregistered. The applicant claimed that the department should have been aware of the activities of this agent as he had supplied false information and forged the applicant’s signature.
The next issue concerned the hearing before a Departmental officer on 17 September 2007. During that interview the applicant was asked if he had difficulty obtaining a passport. He replied he had not. When asked what documents he had with him when he applied for his passport, the applicant said that he had his identity card and 200 RMB. He did not bring his household registration with him (CB 367).
The applicant indicated that those responses were inconsistent with information now available to the delegate. Currently, it is not possible to obtain a passport simply with an identity card and 200 RMB without the household registration and a referral letter from one’s workplace. The applicant claims that the Department and the Tribunal ignored the new evidence and formed the view that the applicant had no difficulty in obtaining his passport.
The applicant attended a Tribunal hearing on 19 December 2007. By 21 December 2007 the applicant claims that he had already received the Tribunal’s decision. However, several days after he received the decision, he received a further notice requiring him to attend another Tribunal hearing. The applicant claims that the Tribunal changed its procedures as it wished to overturn its own decision and then proceeded to make a different decision. The applicant indicated that the Tribunal explained the second hearing in the following terms:
Owing to a misunderstanding the Tribunal made a decision on 21 December 2007 before it had received further information from the applicant as agreed at the hearing. (CB 404.8)
The applicant states that at the end of the hearing on 19 December 2007, he asked the Tribunal member if he had to provide further written submissions. The member said that it was already clear about his case and nothing further was required. The applicant also states that after he received the Tribunal decision he was contacted by a person called Tony who was a member of a refugee organisation who had been assisting the applicant in his case. The applicant indicated that Tony had some concerns with the Tribunal’s decision and was making enquiries including obtaining a solicitor for the applicant. The applicant claims that the decision was based on non-existent material.
Mr Cleary, appearing for the first respondent, initially dealt with the three grounds of review contained in the application. Ground one asserts that the Tribunal failed to comply with s.36 of the Act. There are no particulars or submissions in relation to this ground and as s.36 is limited to setting the criteria for a protection visa, it does not give rise to any substantive obligation on the part of the Tribunal. Therefore, no jurisdictional error is evident. In the circumstances this is not a ground of review and should be rejected.
The second ground asserts that there has been a denial of natural justice. This claim is not particularised nor has there been any submissions in attempt to clarify or support the claim. Section 422B of the Act does not confer a common law natural justice obligation: SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62.
There is no assertion in ground two of any breach of s.424A or s.425 of the Act. The Tribunal complied with s.425 by inviting the applicant to a hearing which he attended and gave evidence in support of his claims through a Mandarin interpreter. On 30 January 2008, the Tribunal forwarded an “Invitation to Comment” letter in accordance with s.424A and the applicant responded on 8 February 2008. The Tribunal’s “Findings and Reasons” consider the contents of both letters. Accordingly, there has been no breach of s.424A. I am satisfied that the Tribunal carried out the review process in accordance with the Act and consequently ground two cannot be sustained and should be rejected. The applicant claims in ground three that he was misled by a Departmental officer but there are no particulars within this claim. However, the applicant has raised four separate issues orally during the hearing which will be discussed below.
First, the applicant claims that the Department did not consider the letter dated 21 August 2006 (CB 102-110). This letter sought Ministerial intervention under s.48B and s.417 of the Act and was the first of five letters seeking intervention. The Tribunal decision under the heading “Claims and Evidence” and the sub-heading “The Applicant’s letter to the Minister dated 21 August 2006” states:
On 21 August 2006, the applicant wrote to the then Minister seeking her intervention under s.48B of the Act to enable him to lodge a further protection visa application. He said that his original migration agent had lodged a false case for him. He then proceeded to explain “what my case really is” saying that in 2001 he met a Ms Wang Aihua through chatting on the internet…(CB 405.4)
The details of that letter are set out over the next page and a half of the decision. The “Findings and Reasons” refer to the same letter as follows:
The Tribunal stated that the inconsistency between the account the applicant has given in his letter dated 21 August 2006 of his resignation from his job in Shanghai and the claims contained in Mr Richards’ submission to the Minister dated 5 March 2007 was relevant to the review because the Tribunal might conclude that there was no truth in the applicant’s claims that he had been demoted and eventually forced to resign from his employment at the Industrial and Commercial Bank of China in May 2001 because of his political views. The Tribunal stated that this information was also relevant to the applicant’s overall credibility. The Tribunal stated, with regard to the documents which the applicant had produced in corroboration of these claims, that it was relevant that, as the Tribunal had referred to in the course of the hearing on 29 January 2008, the Australian Department of Foreign Affairs and Trade had advised that any official document could be brought or forged in China. It had said that irregular or improper issue of documentation was widespread and it had therefore suggested that little evidentiary weight could be placed on any Chinese official document (DFAT Country Information Report No. 301/00, dated 5 June 2000, CX42649, a copy of which it attached). The Tribunal stated that it might therefore give greater weight to the amount the applicant had given in his letter dated 21 August 2006 than to the official documents which he had produced. (CB 425.8-426)
This letter was discussed at the final Tribunal hearing of 29 January 2008. In relation to the inconsistency about the job that the applicant held and whether he had been fired because of political beliefs or resigned, a close reading of the reasons make clear that the Tribunal took into account each of the letters requesting Ministerial intervention, including the letter of 21 August 2006. The Tribunal chose to use the document as a basis for finding inconsistencies in the evidence presented to it on various occasions. The Tribunal did consider the letter and therefore complied with its legal obligation.
The Tribunal considered the inconsistency between the applicant’s account of his resignation from his job in Shanghai and that contained in Mr Richard’s submissions (his support person at the hearing) about the applicant’s demotion and forced resignation from his job because his political views. The applicant claims that the Tribunal member was silent about this during the hearing and failed to discuss this with him.
The “Invitation to Comment” letter of 30 January 2008 (CB 365-370) raised the applicant’s employment with the Jinshan District Branch of the “Chinese Industry and Commerce Bank in Shanghai”. So far as any procedural fairness obligation is concerned, the s.424A letter gave the applicant an opportunity to make further submissions about the inconsistency and in fact put that question specifically to the applicant:
The inconsistency between the account you gave in your letter dated 21 August 2006 of your resignation from your job in Shanghai and the claims contained in Mr Richards’ submission to the Minister dated 5 March 2007 is relevant to the review because the Tribunal may conclude that there is no truth in your claim that you were demoted and eventually forced to resign from your employment at the Industrial and Commercial Bank of China in May 2001 because of your political views. (CB 366)
In the circumstances, I am satisfied that the applicant’s claim that the Tribunal did not provide him with an opportunity to discuss this issue further cannot be sustained and this ground should be rejected.
The applicant claims that his first agent, Mr David Deng, made false claims in his original visa application. This was noted and referred to in the Tribunal’s decision (CB 427-428). A fair reading of that part of the decision indicates that the Tribunal did not overlook the issue. Rather, it addressed the issue properly and examined the effect of Mr Deng’s involvement in relation to the evidence that was given by the applicant. Mr Deng’s involvement in this case is distinguishable from the behaviour discussed in the recent High Court decision of SZFDE v Minister for Immigration & Citizenship [2007] HCA 35 which discussed fraud by an agent. In this matter the applicant attended the Tribunal hearing and was assisted by a different agent. I am satisfied that this claim does not establish any jurisdictional error.
The next claim made by the applicant in his oral submissions suggested that the Tribunal ignored the evidence about the issue of his passport and his ability to obtain one. In the Tribunal’s “Findings and Reasons” (CB 429-431), the issue of a passport was considered with the conclusion being recorded:
Having regard to this inconsistency in the applicant’s evidence I conclude that he altered his evidence in this regard after the Tribunal put to him that the fact that he had been able to obtain a passport in his own name without difficulty suggested that he had not come to the adverse attention of the Government of the People’s Republic of China. I consider that once again this information is also relevant to the applicant’s overall credibility. Since I believe that the applicant only altered his evidence in this regard after the Tribunal had put to him that the fact that he had not been able to obtain a passport in his own name without difficulty suggests that he had come to adverse attention of the government of the Peoples’ Republic of China, I prefer the evidence contained in the applicant’s current application for a protection visa to what he has subsequently said in this regard. I conclude that the applicant did not in fact have difficulty in obtaining his passport issued in July 2003. (CB 431.5)

I am satisfied that the Tribunal fulfilled its obligation to consider this issue. An opportunity has been given to the applicant to discuss the issue at the Tribunal hearing as well as respond to the s.424A letter. The conclusion reached by the Tribunal is not within the jurisdiction of this Court to upset.
The last claim concerns the recall of the Tribunal decision handed down on 21 December 2007 and the subsequent second decision by a new Tribunal member. It has been questionable in the past whether this type of procedure is lawful but the Tribunal was aware of this issue and referred to Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. The Tribunal decision under the heading “Claims and Evidence” states:
The Principal Member directed that another Member constitute the Tribunal for the purpose of finishing the review and the applicant appeared before the Tribunal as presently constituted to give oral evidence and present argument on 29 January 2008. The Tribunal was assisted by an interpreter in the Mandarin language. The applicant represented by Ms Beatriz Stotz of Playfair Visa and Migration Services, a registered migration agent. Ms Stotz appeared at the hearing on 29 January 2008. Ms Jill Vidler, a solicitor and registered migration agent, attended the hearing on 19 December 2007. (CB 404)
The High Court in that case found that recalling a decision and issuing a second decision is lawful and does not give rise to a jurisdictional error. Rather, it is consistent with the Act. At the earlier hearing the applicant was told that he would have the opportunity to provide further material. I am satisfied that given the circumstances, it is unusual that the process of allowing a second and different Tribunal member would give rise to a jurisdictional error.

Conclusion

The applicant in these proceedings is a self represented litigant who appears with the assistance of a Mandarin interpreter. The Court provided the applicant with a panel advisor but he did not file an amended application. When invited to make oral submissions, the applicant addressed a wide range of issues in an attempt to revisit the merits of his application. Counsel for the first respondent assisted with written and oral submissions in response to the application and I am satisfied that the issues identified in the application have been satisfactorily addressed. This also applies to the oral submissions made by the applicant. I am satisfied that each of these new grounds do not give rise to jurisdictional error.
In these circumstances, the Court has an obligation to independently consider whether any argument based on the material contained in the Court Book and in particular the Tribunal decision may support a claim of jurisdictional error. It is not apparent that any ground exists which suggests that the Tribunal made a jurisdictional error in its decision making process. Consequently, the application should be dismissed.
I am satisfied that a costs order should be made in this matter.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 27 June 2008