SZISL v Minister for Immigration
[2007] FMCA 1361
•16 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZISL v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1361 |
| MIGRATION – Review of Refugee Review Tribunal decision – impermissible merits review – adverse finding as to credibility – “inconsistencies” not “information” for the purposes of s.424A – no evidence before the Court that the hearing before the Tribunal amounted to no hearing at all – Court not entitled to draw inferences as to what may have occurred at the hearing – no breach of s.430 – findings of fact, including findings on credibility, are a matter for the Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.36(2), 424A, 422B, 425, 430 |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 A v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 56 Kopalapillai v Minister for Immigration and Ethnic Affairs (1998) 86 FCR 547 Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 SZEPZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 107 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 81 ALJR 515 Re Minister for Immigration and Multicultural and Ethnic Affairs; Ex Parte Palme (2003) 216 CLR 212 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 1 Re Minister for Immigration and Multicultural Affairs, Ex Parte Durairajasingham (2000) 168 ALR 407 |
Applicant: | SZISL |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2986 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 7 August 2007 |
| Date of Last Submission: | 7 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 16 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Ms K Morgan |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The reference to the first respondent be amended to read “Minister for Immigration and Citizenship.”
The application made to this Court on 16 October 2006 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2986 of 2006
| SZISL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 16 October 2006 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 5 September 2006, and handed down on 14 September 2006, which affirmed the decision of a delegate of the respondent Minister made on 2 November 2006 to refuse to grant a protection visa to the applicant.
Background
The applicant is a national of the People’s Republic of China who arrived in Australia on 15 August 2005. On 27 September 2005, the applicant made an application for a protection visa. On 2 November 2005, a delegate of the respondent Minister refused to grant a protection visa to the applicant. On 1 December 2005 the applicant applied to the Tribunal for review of that decision. (The application for review is reproduced in the Court Book (“CB”) at CB 42 to CB 46.) The applicant was assisted by a registered migration agent in making that application (see the covering letter, signed by the migration agent, to the application for review reproduced at CB 42).
On 23 February 2006, the applicant appeared before the Tribunal (“the earlier constituted Tribunal”). On 16 March 2006, the Tribunal handed down its decision, signed 6 March 2006, affirming the decision of the delegate of the respondent Minister (reproduced at CB 61 to CB78). On 19 June 2006, orders were made by consent in the Federal Magistrates Court remitting the matter to the Tribunal (reproduced at CB 79).
On 23 August 2006, the applicant appeared before the Tribunal (differently constituted), with the assistance of his adviser and with the assistance of an interpreter in the Mandarin language (see the Tribunal’s decision record reproduced at CB 98 to CB 111, at CB 101.3).
The Applicant’s Claims to Protection
The applicant’s claims to protection can be found in his application for a protection visa, in particular in the applicant’s statutory declaration in support of the application (reproduced at CB 23 to CB 26). The applicant claimed to fear persecution on the basis of his political opinions. The applicant’s claims were that:
a)From early in 2005, he and a Mr Da Cai Chen were the subject of investigation by PRC authorities, specifically, the Public Security Bureau (“PSB”) and the National Security Bureau (“NSB”) (CB 25.6).
b)He and Mr Chen were “denounced to assist Taiwan ‘spies’ to spread ‘anti-Communist’ ideologies in Mainland China” (CB 25.7).
c)On 15 May 2005, he and Mr Chen were arrested by the PSB during a meeting that the applicant had been holding in his home. The applicant stated that he and Mr Chen were “denounced … to organize ‘illegal’ meeting” and were “forced … to make confession” (CB 25.9 to CB 26.1).
d)He and Mr Chen were “cruelly mistreated by the policemen, because we both refused to follow instructions of the PSB at the beginning. We were both hung for two days by the policeman, and finally we both had to sign on a statement which was actually prepared by the PSB” and in which the applicant admitted to taking part in “‘illegal’ political meetings” (CB 26.2).
e)He and Mr Chen were released on 31 May 2005 after paying a fine of RMB 30,000 yuan (CB 26.3).
f)He had “frequently been subjected to questions and interrogations; and I have been threatened by the policemen from time to time” since being released from police custody in May 2005 (CB 26.5).
The Tribunal made the following findings:
a)The applicant is a citizen of China (CB 109.3).
b)The applicant’s claims were “for the most part not credible” and that, during the hearing (of 23 August 2006), the applicant had contradicted himself as to when the business in which he was a partner in the 1990s had closed and why, and as to when he became unemployed as a result of the closure of the business (CB 109.4). The applicant also contradicted what he had said during a hearing before the earlier constituted Tribunal when he did not mention a period of unemployment (CB 109.4).
c)The applicant claimed to be a partner and manager in a new business established in about 1990 but could not answer “convincingly (or even in some cases at all) few questions about the technical or commercial side of the business” (CB 109.5).
d)The applicant claimed to have had lengthy discussions about capitalism and democracy with his former business partner after the partner had returned from some years on business in Europe but could not give any details as to what business his former partner had engaged in while in Europe (CB 109.6).
e)The claimed disparity in the treatment of the Chinese citizens who were detained for two weeks, and the Taiwanese nationals who were not expelled from the country, after being discovered by the PSB participating in discussions about democracy and capitalism, was “not credible” (CB 109.7).
f)The applicant’s claim that he was considering moving his business overseas “lacked any credibility” as it was unsupported “by any sign of understanding of issues which would have to be addressed before making such a move” (CB 109.8).
g)It did “not accept” that the applicant had been “detained by the Chinese authorities or warned or threatened or fined for any reason” (CB 110.1).
h)It did “not accept” that the applicant had engaged in political meetings with Taiwanese and Chinese businessmen (CB 110.2).
In all, the Tribunal was not satisfied that the applicant had a well founded fear of persecution in China for a Refugee Convention reason.
On 16 October 2006 the applicant filed an application in this Court which asserted the following:
1. Mr Hugh Wyndham, the Presiding Member of the Tribunal (‘the Presiding Member’) failed to comply with s.91R and 91S of the Act, which now qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Particulars:
a. The Presiding Member failed to consider my claims, properly and fairly, that I must have a real chance of being persecuted on my return to home country owing to my political opinions and actions not tolerated by the Chinese government;
b. The Presiding Member failed to consider my claims, properly and fairly, that my political opinions and political actions have already come to the special attention of the PRC authorities.
2. The Presiding Member failed to comply with his obligation under s.424A(1) of the Act.
Particulars:
a. The Presiding Member failed to give to me particulars of the ‘information,’ that she considered to be the reason, or a part of the reason, for affirming the decision that is under review; and
b. The Presiding Member failed to ensure, as far as is reasonably practicable, that I understand why it is relevant to the review; and
c. The Presiding Member failed to invite me to comment on it.
3. The Presiding Member failed to comply with his obligation under s.425(1) of the Act.
Particulars:
a. The Presiding Member failed to provide me a fair chance to give my evidences during the Tribunal’s hearing; and especially, on many occasions, I was interrupted. Also, I was in difficult to well communicate with the Presiding Member owing to the interpreter who might not be able to interpret the questions or the answers, properly and clearly.
b. The Presiding Member failed to make me clear what actual issues were arising from the review, and thus, I have been denied to present my arguments relating to the issues arising in relation to the decision under review.
4. The Presiding Member failed to comply with his obligation under s.430 of the Act.
Particulars:
a. The Presiding Member failed to sets out the reasons for the decision; and failed to sets out the findings on any material questions of fact; and failed to refer to the evidence or any other material on which the findings of fact were based.
5. The Presiding Member failed to consider my claims, properly and fairly.
Particulars:
a. The Presiding Member ignored important materials, such as independent country information before the Tribunal;
b. The Presiding Member applied a wrong test to determine my credibility;
c. The Presiding Member misunderstand my claims or made a wrong finding; and
d. The Presiding Member failed to give me a fair opportunity to comment on those negative issues.” [Errors in original]
At the hearing the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. Ms K Morgan of Counsel appeared for the respondent.
Before the Court, the applicant submitted:
a)The Tribunal had made a mistake.
b)The Tribunal questioned him about why his friend had gone to Europe and how much money his friend made in Europe. Presumably, the applicant’s complaint is that this was an irrelevant issue to its consideration.
c)He established a factory in 1999. The Tribunal asked questions about what raw materials he used in the factory, and then did not believe his answers.
d)The Tribunal asked him about “democracy,” and then did not “explore” this topic. The applicant asserted that he answered the Tribunal’s questions correctly but that the Tribunal found that he had not answered truthfully.
Ground One
I agree with Ms Morgan that, in essence, ground one of the application seeks impermissible merits review by this Court. Plainly, this Court cannot review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. I note further, Ms Morgan’s reference to A v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 56 at [11], per French J with whom Lindgren J (at [13]) and Stone J (at [14]) agreed.
The applicant’s assertion that he meets the first of four key elements to the Refugee Convention definition (presumably with reference to Article 1A(2) of the Convention), that is, that he is outside his country of nationality, and that the Tribunal did not accept that his political opinions would not be tolerated by the Chinese government and that he had come to the special attention of the PRC authorities, on its own, cannot be seen as anything further than a challenge to the merits of the Tribunal’s decision.
To the extent that this may be a complaint that the Tribunal failed to consider the applicant’s claims, or some aspect of the applicant’s claims, or that the Tribunal failed to “properly consider” the applicant’s claims, on the material before the Court, such complaints do not succeed. The applicant’s claims before the Tribunal were that he held certain political opinions, these were known to the PRC authorities and, indeed, he had come to the attention of PRC authorities, and he had been detained by them. I cannot see that these claims were not understood by the Tribunal, nor can I see that they were not considered by the Tribunal. Nor can I see that any claim, or any integer of the claim, was ignored by the Tribunal in its analysis.
The Tribunal found contradictions in what the applicant said in the hearing before it (CB 109.5): that he was, for the most part, not convincing in answering questions about his business activities (CB 109.6), that he could tell the Tribunal at the hearing nothing at all about his former business partner’s activities (CB 109.7) and, ultimately, the Tribunal did not find credible his explanation as to the disparity of treatment meted out to those who were present at a meeting at which the applicant claimed to have been subsequently detained by the authorities (CB 109.8). Further, that based on a comparison between what the earlier constituted Tribunal put to the applicant at the hearing before it, and what he later said to the Tribunal at the hearing subsequently before it, the Tribunal found that the applicant’s answers were “inadequate” and that his understanding of democracy and certain motives that he had concerning the movement of his business overseas were also “inadequate.” The Tribunal, therefore, did not accept that the applicant had been detained by Chinese authorities, or that he had been engaged in political meetings such as to bring him to the attention of the authorities. All these findings dealt with the applicant’s claims as put by the applicant and were open to the Tribunal on what was before it. No error is demonstrated in these circumstances: Kopalapillai v Minister for Immigration and Ethnic Affairs (1998) 86 FCR 547 at 558-559.
To the extent that the applicant’s complaint that the Tribunal failed to consider his claims “fairly” may imply some claim of bias, or the apprehension of bias, in the Tribunal’s decision (Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425 and Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507), there is no evidence before the Court to support any such complaint. To the extent that this may imply some lack of procedural fairness, I will deal with this further below.
In all, there is nothing before the Court, nor has the applicant been able to point to any claim, or any aspect of his claim, that was not considered by the Tribunal. That the applicant claims that this consideration was deficient, in the absence of anything else before the Court, can only be seen as a product of his dissatisfaction with the Tribunal’s findings. Such dissatisfaction on its own does not reveal jurisdictional error on the part of the Tribunal.
Ground Two
Ground two of the application asserts a failure by the Tribunal to comply with its obligation pursuant to s.424A(1) of the Act. The particulars merely recite what is set out relevantly in that section. There is no detail whatsoever as to what information the applicant claims was not provided to him for comment, let alone what information was said to be part of the reason for affirming the decision under review. Any plain reading of the Tribunal’s decision record reveals that its reasons for affirming the decision under review were based on information provided by the applicant himself, either at the hearing before it, or at the hearing before the Tribunal as previously constituted. Such information falls within the exception set out in s.424A(3)(b) from the requirements of s.424A(1): see SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [91], [173] and [264]. I note also, that information provided to the earlier constituted Tribunal was, of course, information provided to the Tribunal for the purposes of the review: see SZEPZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 107 at [42]-[43].
Further, I also agree with Ms Morgan that, with reference to SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, in particular at [21], as to what constitutes “information,” the inconsistencies relied on by the Tribunal would not be such as to assist the applicant in this complaint.
I note that this is a matter to which s.422B of the Act applies making the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule (absent bias). But even in the context of the principles of procedural fairness at general law,
I cannot see that the applicant was denied the opportunity to comment on information relevant to the consideration of the application before the Tribunal, nor that he would not have been aware of the relevant issues. The applicant would have been aware of the serious concerns about the truthfulness of his evidence held by the earlier constituted Tribunal (see CB 108.3). The Tribunal at the hearing before it (when read with the Tribunal’s findings and reasons) discussed the relevant issues with the applicant covering his claimed business activities, the activities of his partner, his understanding of democracy which was said to underpin his political activities which had brought him to the adverse attention of the authorities, his attendance at political meetings and his claimed detention. In all, as stated, the ground does not succeed.
Ground Three
The third ground asserts that the Tribunal failed to comply with its obligations pursuant to s.425 of the Act. Given the nature of the particulars put forward in support of this ground, this is not an assertion that the Tribunal failed to invite the applicant to a hearing, as it is in the circumstances obliged to do, but is a complaint about certain aspects of the hearing that did occur and which the applicant presumably intends to assert meant that the opportunity of a hearing provided to him by the Tribunal was not a real and meaningful opportunity. The specific deficiencies alluded to are that the Tribunal member on many occasions interrupted him during the course of the hearing, and that there were difficulties with the interpreter. Further, that the Tribunal failed to make it clear what the “actual issues” were that were relevant to the review, and he was therefore denied the opportunity to present his arguments relating to these issues.
The great difficulty for the applicant is that in relation to the competency or otherwise of the interpreter and the claimed interruptions on the part of the Tribunal member, there is no evidence whatsoever before the Court to indicate, let alone support, what the applicant claims occurred. The only evidence before the Court is that contained in the Tribunal’s decision record itself and this clearly does not support the applicant. In these circumstances, it is not open to this Court to draw inferences as to what may have occurred at the hearing: NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241.
As Ms Morgan submits, the second particular to this ground, namely that the Tribunal failed to make clear to the applicant the actual and, one would assume, determinative issues arising from the review, is an attempt to introduce a reference to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 81 ALJR 515 (“SZBEL”). I also agree with Ms Morgan that any plain reading of the Tribunal’s decision record does not reveal that the applicant did not have brought to his attention, nor that he was not given the opportunity to deal with, the issues that were ultimately determinative in the review that was conducted. Nor does the applicant point to any issue that was dealt with by the delegate that may have been relevant before the Tribunal but that was not brought to his attention, such that there was a failure to meet the requirements of s.425 as explained by the High Court in SZBEL. As set out above, the Tribunal’s decision relied on issues discussed at both hearings before the Tribunal and there is nothing to show that the applicant was not directed to the determinative issues.
Ground Four
Ground four asserts a failure to comply with s.430 of the Act. The particulars merely assert that the “member” failed to set out reasons for the decision. This complaint, as put, is without merit as the decision record which, on its face, complies with all of the requirements set out in s.430 is before the Court, not only by way of the relevant material provided by the Minister, but as an attachment to the applicant’s own affidavit filed in this Court, made on 11 October 2006.
As pleaded, this assertion of a breach of s.430 of the Act would not amount to jurisdictional error in any event: see Re Minister for Immigration and Multicultural and Ethnic Affairs; Ex Parte Palme (2003) 216 CLR 212.
Ground Five
Ground five asserts, in somewhat similar fashion to what is set out in ground one, that the Tribunal failed to consider the applicant’s claims properly and fairly. To the extent that this was dealt with in relation to ground one, nothing further need be said. To the extent that ground five asserts that the Tribunal ignored important materials, then there is nothing before the Court to show that anything put forward by the applicant was ignored by the Tribunal. This particular does not assist the applicant in establishing his complaint in ground five. That the applicant asserts that there was independent country information before the Tribunal that it ignored, then he has been unable to point as to exactly what independent country information the Tribunal ignored and, in any event, the Tribunal’s assessment of any country information is of course a matter for the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13].
Nor, can I see that the Tribunal applied a “wrong test” to determine the applicant’s credibility. Findings of fact, including findings on credibility, are of course a matter for the Tribunal (per McHugh J in Re Minister for Immigration and Multicultural Affairs, Ex Parte Durairajasingham (2000) 168 ALR 407 at [67]), and the evaluation of credibility is for the Tribunal to make. As Ms Morgan submits it was open to the Tribunal, where concerns about the applicant’s credibility had already been identified for him, to conclude that it ultimately did not believe his claims. See also in relation to this SZBYR (at [21]), and SZBEL (at [47]).
Conclusion
The applicant’s complaints, as set out in his application, do not reveal jurisdictional error in the Tribunal’s decision. Nor is such error otherwise discerned from material before the Court. This application is dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 16 August 2007
0
13
1