SZITB v Minister for Immigration
[2007] FMCA 1330
•1 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZITB v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1330 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – applicant is a citizen of People's Republic of China claiming fear of persecution on the basis of political opinion – credibility – allegation of bias – no evidence of bias – no reviewable error. PRACTICE & PROCEDURE – Doubt about the power of the Federal Magistrates Court in remitting an application to order that the Tribunal be differently constituted. |
| Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth), ss.425, 426A, 475A |
| SZEPZ v Minister forImmigration & Multicultural Affairs [2006] FCAFC 107 followed. Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 ReMinister forImmigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Abebe v Commonwealth (1999) 197 CLR 510 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 SZEEU v Minister for Immigration& Multicultural & Indigenous Affairs (2006) 150 FCR 214 Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27 SBBS vMinister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 |
| Applicant: | SZITB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3765 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 3 July 2007 |
| Date of last submission: | 3 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 1 August 2007 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr O’Donnell |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3765 of 2006
| SZITB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. A decision was signed on 26th October and handed down on 21st November 2006. The Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) Visa.
The Applicant seeks judicial review of that decision and she filed an application and affidavit in support on 15th December 2006. The Applicant also filed an amended application on 24th April 2007. In that amended application the Applicant seeks the following orders:
a)A declaration that the decision was invalid and contrary to law.
b)An order that the decisions or each of them referred to above be quashed or set aside.
c)An order that the matter be remitted to a differently constituted Refugee Review Tribunal to be determined in accordance with the law.
d)An order that the Respondent pay the costs of this application.
e)Such order or other order as this Honourable Court sees fit.
I would comment that an application for costs seems inappropriate as at all times the Applicant has not been legally represented and the filing fee for the application was waived. I am at a loss to see what costs there would be.
The order for the application to be remitted to a differently constituted Refugee Review Tribunal is also, in my view, problematic. I have expressed a view for some time that an order in the nature of mandamus, should the Court be persuaded that such an order is appropriate, does not include a direction to the Tribunal as to the constitution of the Tribunal.
An order in the nature of mandamus, in my view, should indicate to the Tribunal that the matter is to be determined according to law. I am strengthened in that view by the decision of the Full Court of the Federal Court of Australia in SZEPZ v Minister forImmigration & Multicultural Affairs [2006] FCAFC 107 where their Honours said at [30]:
It is by no means clear that the Federal Magistrates Court had power or jurisdiction to direct that the Tribunal be constituted differently for the purpose of reconsidering the appellant’s application for review of the delegate’s decision. As indicated above, the constitution of the Tribunal is a matter for the Principal Member.
Background
The background to this matter is that the Applicant is a citizen of the People's Republic of China who arrived in Australia on 21st March 2005 and applied to what was then the Department of Immigration & Multicultural Affairs for a Protection (Class XA) visa on 30th April in that year. That application was refused on 16th July 2005. On
9th August 2005 the Applicant sought a review of the delegate's decision from the Refugee Review Tribunal.
The Refugee Review Tribunal invited the Applicant to attend a hearing and the Applicant told the Tribunal that she did not claim to be a Christian or to fear persecution on the basis of religion notwithstanding the fact that the Applicant had made such a claim in her application for a protection visa. The Applicant told the Tribunal that she feared persecution on the basis of her political opinions based on her brother having disappeared during the pro-democracy protests in the year 1989 and her efforts since then to discover and bring to public notice what had happened. The Applicant claimed that the error was due to the fault of her migration agent.
On 22nd November 2005 the Tribunal wrote to the Applicant and invited her to attend another hearing to be held on 13th December 2005. The Applicant attended that hearing. Next, on 3rd January 2006 the Tribunal wrote to the Applicant inviting her comments about certain information. That letter was clearly intended to comply with the requirement of s.424A of the Migration Act. The letter asked the Applicant to give written comments by 26th January 2006.
On 24th January 2006 the Applicant's migration agent wrote to the Tribunal on the Applicant's behalf, providing certain documents and asking for copies of tapes to be provided. The Applicant's migration agent also provided a copy of a statutory declaration declared by the Applicant that same day.
On 21st March 2006 the Tribunal handed down a decision affirming a decision of the delegate not to grant the Applicant a protection visa. The Applicant then sought judicial review from the Federal Magistrates Court and on 2nd August 2006 Emmett FM made orders by consent quashing the Tribunal decision and remitting the application to the Tribunal for decision according to law.
The Applicant was invited to attend another Tribunal hearing on 5th October 2006. The Applicant attended that hearing and gave evidence. On 11th October 2006 the Tribunal again wrote to the Applicant sending her a further letter inviting her to comment on information under the provisions of s.424A of the Migration Act.
A copy of that letter can be found on pages 144 through to 147 of the Court Book. The Tribunal invited the Applicant to provide comments on the material in that letter in writing by 25th October 2006.
The Applicant's migration agent wrote to the Tribunal on 25th October 2006 providing a statutory declaration by the Applicant in reply to the s.424A letter. The Tribunal handed down its decision on 21st November 2006 affirming the decision of the delegate not to grant the Applicant a Protection (Class XA) Visa.
A copy of the Tribunal decision record can be found on pages 157 through to 182 of the Court Book. In that decision the Tribunal set out the Applicant's claims and evidence in the protection visa application and also the evidence given at the hearing on 22nd November 2005. The Tribunal decision also set out details of the evidence in summary form in respect of the hearing on 13th December 2005 and referred to the Applicant's statutory declarations in answer to the s.424A letter.
The Tribunal also set out, in considerable detail, an account of the Applicant's evidence to the Tribunal at the hearing on 5th October 2006. The Tribunal also referred to independent country information which can be found at page 173 of the Court Book relating to a report from the Department of Foreign Affairs & Trade stating that it would be difficult for a national of the People's Republic of China to depart from China without that departure coming to the attention of the authorities.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons are set out on pages 174 through to 181 of the Court Book. The Tribunal noted the Applicant's Chinese passport and accepted that the Applicant was a citizen of the People's Republic of China. However, apart from accepting that key fact, the Tribunal did not accept that the Applicant had presented a truthful account of her circumstances and activities in her home country, either to the Department of Immigration & Multicultural Affairs or to the Refugee Review Tribunal. The Tribunal referred to the inconsistencies and significant discrepancies in the Applicant's evidence to the Department and to the Tribunal and did not accept the Applicant's explanations for those inconsistencies and discrepancies.
The Tribunal accepted that the Applicant's claims made in her original protection visa application were false in that she was not claiming to be a Christian and seeking a protection visa on that basis. However, the Tribunal did not accept the Applicant's evidence that she had no knowledge or involvement in the lodgement of those fabricated claims. The Tribunal had this to say at pages 175 and 176 of the Court Book:
The inconsistencies in the applicant's evidence about the lodgement of protection visa application and the fabricated claims with the Department, as highlighted above, lead the Tribunal to conclude that she has not given a truthful account of her involvement and as such leads the Tribunal to doubt her credibility more generally.
Indeed, throughout the balance of the findings and reasons the Tribunal's general doubts about the Applicant's credibility have been made extremely clear. The Tribunal, throughout the decision, refers to inconsistencies and discrepancies in the Applicant's evidence and refers to a number of claims that the Tribunal did not accept as plausible. The Tribunal formed the view that the Applicant had not provided a truthful account of how and why she obtained a passport in November 2002. The Tribunal noted that that information was inconsistent with independent country information that the Tribunal had.
In short, the Tribunal found that the Applicant had not provided a truthful account of her experiences in China and found that her claims in her protection visa application were fabricated. The Tribunal did not accept the Applicant's reasons for submitting false information in the protection visa application and did not accept any of the claims that she made at the hearing of the Tribunal. The Tribunal did not accept that the Applicant's brother participated in the pro-democracy movement in Beijing in June 1989 or that he was killed as a result of his involvement in this movement.
The Tribunal did not accept that the Applicant demanded an explanation from the government as to what happened to her brother. It followed that the Tribunal did not accept that the Applicant was detained, nor did the Tribunal accept that the Applicant printed or distributed a book about the June 4th movement or that she was ever involved in any activities associated with that movement as she had claimed. The Tribunal did not accept that the Chinese authorities were looking for the Applicant as the Applicant had claimed they were, nor did it accept that the Applicant had any difficulties in obtaining a passport in her own name or leaving China lawfully and the Tribunal did not accept that the Applicant was still of interest to the Chinese authorities.
In short, the Tribunal was not satisfied that the Applicant held any genuine or well-founded fear of any harm for a Convention reason if she were to return to China and was not satisfied that the Applicant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugee's Protocol. The Tribunal found the Applicant did not satisfy the criterion set out in sub-s.36(2) of the Migration Act for a protection visa.
Accordingly, the Tribunal affirmed the decision of the delegate not to grant the Applicant a Protection (Class XA) Visa.
The Application for Judicial Review
The Applicant, as I said, sought judicial review of that decision. In her amended application filed on 24th April 2007 the Applicant claimed that:
a)There was an error of law in the Tribunal's decision constituting jurisdictional error.
b)There was procedural error in the Tribunal's decision constituting an absence of natural justice.
The Applicant provided a number of particulars of that, alleging that the Tribunal failed to consider important evidence or that the Tribunal had identified a wrong issue or that the Tribunal had ignored relevant important information while the Tribunal made a finding regarding lodgement of a primary protection application.
The Applicant also claimed that the Tribunal had made a decision with bias and whilst she conceded that there was a problem with her evidence to the Department, she claimed that she did not understand why her subsequent evidence was not accepted and blamed it on bias by the Tribunal. The Applicant claimed that the Tribunal failed to comply with its obligation under s.425 of the Migration Act by expressing a view that she did not believe that the Tribunal had honestly invited her to give evidence and to present arguments relating to the issues arising in relation to the decision under review.
The Applicant also claimed that the Tribunal failed to comply with its obligations under sub-s.424A(1) of the Migration Act; particulars of which claimed that she did not think that the Tribunal had honestly complied with its obligation under sub-s.424A(1) and balance of those particulars are, in effect, a paraphrase of that particular sub-section. The Applicant also claimed that in deciding her application, the Tribunal had misunderstood her application, failed to consider an essential claim in the case and asked itself a number of wrong and irrelevant questions and failed to identify and consider the relevant issues to be determined. She claimed that the Tribunal incorrectly assessed her credibility and did not believe that her application had been considered fairly and properly.
The Applicant provided a typed set of submissions which were filed on 28th June 2007. The submissions contained two grounds:
That the Tribunal failed to consider important evidence in my application and failed to conduct a real chance test fairly and properly in considering my application, Consequently, the Tribunal failed to make a correct finding in its decision.
The particulars of that claim in sub-paras.(a), (b) and (c) relate entirely to factual matters and in my view are tantamount to an invitation to the Court to conduct merits review which of course is not available on an application for judicial review.
The second claim is that the Tribunal made its decision with bias. The Applicant's claim there is set out as follows:
(a)The Tribunal has completely ignored the evidences that I was really in a particularly vulnerable situation while I prepared my protection application at the beginning; and I found myself in an alien environment; and I have experienced serious difficulties in submitting my case to the Department in a language not my own. Therefore, I had to seek help from a migration agent. Unfortunately, I have in fact been cheated by the migration agent.
(b)The Tribunal has obviously had a biased view on the evidence that I have been cheated and mislead by my previous migration agent; and the Tribunal failed to look at my claims properly and fairly.
The Applicant also annexed to her submissions, letters in the way of character references from other people and also some photographs claiming to be evidence that she had actively participated in the pro-democracy movement in Sydney.
I informed the Applicant at the hearing that as the documentary evidence and the photographs had not been submitted to the Refugee Review Tribunal, they were not matters that the Court could take into account. I explained to the Applicant that the Court does not consider fresh evidence. I asked the Applicant to expand on her written submissions should she wish to do and in particular I asked her about the claim of bias. The Applicant said that the Tribunal only believed what was in her original application and did not consider her later material. As to her claim that the Tribunal did not comply with s.425 of the Act; she said that later she provided further material but the Tribunal did not believe her. She did not complain about the Migration Agent's Registration Authority.
I note too that whilst the Applicant claimed in her submission that a particular named person, who I gather must be a migration agent, had cheated her; not only has she not made any complaint about that person but there is no affidavit material in support of the serious allegation and the Applicant had made no attempt to inform the migration agent of those claims.
The Applicant also told the Court that the Tribunal did not give a fair assessment of her application; the Tribunal did not rely on her later submission as she said but only focussed on her original information. She complained that the Tribunal did not consider her life experience and she said that she thought nobody would listen to her if she told the truth. She said that she was a victim in China and that the police tried to arrest her and she asked the Court to reconsider her case.
Again; the Applicant's submissions, in my view, were an invitation to the Court to reconsider the factual evidence that was given to the Tribunal and as I made it clear to the Applicant at the hearing, the Court cannot and does not conduct merits review.
I also had recourse to some very useful written submissions prepared on behalf of the Minister by Mr O'Donnell of counsel. Mr O'Donnell pointed out the Court can only grant judicial review remedies if the Tribunal's decision was affected by jurisdictional error as made quite clear in s.474 of the Tribunal[sic] Act and I am referred to the decision of Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
As to the Applicant's amended application; Mr O'Donnell submitted that there was nothing in the amended application which would indicate any jurisdictional error that the Tribunals assessment of the Applicant's credibility was based on internal inconsistency, implausibility and inconsistency with independent country information which was well within the Tribunal's jurisdiction. (See ReMinister forImmigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]). There was no error of law let alone jurisdictional error in simply making a wrong finding of fact. (See Abebe v Commonwealth (1999) 197 CLR 510 at [137]). Merits review is not available in applications of judicial review. (See Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).
As to the Applicant's specific claims; Mr O'Donnell referred the Court to the allegation of a breach of sub-s.424A(1) of the Migration Act but pointed out the Applicant did not specify the information that formed part of the Tribunal's reason where it is alleged that the Tribunal failed to give the Applicant particulars. As he submitted, and in my view correctly, most of the information used by the Tribunal as part of its reason for rejecting the application was that given to the Tribunal at one of the three Tribunal hearings or in one of the statutory declarations in response to either of the two s.424A letters. This information clearly falls within the exception contained in
sub-s.424A(3)(b) of the Migration Act.
The fact that the first two hearings and the response to the first s.424A letter were given to the Tribunal as previously constituted does not change that position. I am referred to the decision of the Full Court of the Federal Court in SZEPZ at [39] their Honours said:
In any event, when ss.421, 422 and 422A refer to ‘a particular review’, they identify the review initiated under s.414(1) and culminating in a decision in accordance with s.430, being the review that a particular person, namely the applicant for review, has initiated in respect of an RRT-Reviewable Decision. The expression does not depend upon the identity of the particular member constituting the Tribunal. Rather, it refers to the function of the Tribunal to review a decision. Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s.414, it has a duty to perform that particular review. An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made.
Counsel for the Minister referred me to three particular claims which the Tribunal found to be inconsistent. He pointed out, quite correctly, that information given to the Department of Immigration & Multicultural Affairs rather than the Tribunal does not fall within the exception in sub-s.424A(3)(b). (See SZEEU v Minister for Immigration& Multicultural & Indigenous Affairs (2006) 150 FCR 214; Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27).
In this case, however, the particulars of this information, being the Applicant's claims of Christianity, the claim in her protection visa to have some difficulty acquiring a passport and her statements relating to her employment history and the Visitor's visa Application were all given to the Applicant in the second s.424A letter to which I previously referred.
In respect of any allegation of a breach of s.425; those claims I note were also put to the Applicant during the hearing for her comments. I am of a view, as counsel for the Minister has submitted that there was no breach of s.424A of the Migration Act.
As to the claim of bias; it is well established that claims of bias or lack of good faith on the part of an administrative decision maker are serious allegations. They must be strictly alleged and proved. It is only in a rare and extreme circumstance that bias will be able to be ascertained from the Tribunal's reasons for decision. (See SBBS vMinister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [43] and [44]; SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 at [16]). In my view there is no evidence of bias at all. That claim must fail.
As to the claim that the Tribunal failed to comply with its obligations under s.425 of the Migration Act; the Applicant expressed a view that she did not think that the Tribunal had honestly invited her to give evidence and to present arguments relating to the issues arising in relation to the decision under review. Insofar as that is an allegation of bias or bad faith; it similarly failed.
As to the procedures adopted by the Tribunal; the Tribunal definitely did comply with s.425 of the Migration Act. It invited her to a hearing. In fact it held three hearings. When the Applicant admitted at the first hearing that her claims of seeking protection on the basis of Christianity were false and fabricated, the Tribunal invited the Applicant to a second hearing. The Tribunal, on two occasions, wrote to the Applicant under the provisions of s.424A of the Migration Act, putting information to her which may, subject to her comments, be the reason or part of the reason for affirming the delegate's decision of seeking her comments in writing. The Applicant provided written comments in the form of a statutory declaration and it is clear from the Tribunal decision that the Tribunal considered all that material.
In my view, the Applicant was well aware of the key issues that the Tribunal was considering. She had been made aware by the Tribunal, not only at the various hearings but in s.424A letters and I am satisfied that there is no breach of s.425 of the Migration Act.
The Applicant claimed that she had been misled by a migration agent. There is no evidence of that and I reject that claim even if it were a matter which would go towards jurisdictional error. The Applicant had referred to the decision of Minister for Immigration & Multicultural &Indigenous Affairs v SZFDE [2006] FCAFC 142. This was a matter where in the Full Court, where French, Allsop and Graham JJ dissenting held that:
Circumstances where the applicant filed a consent under section 425B to the Tribunal deciding the matter without the applicant appearing before a hearing allegedly without obtaining the applicant's informed consent, did not invalidate the Tribunal's subsequent decision to reject the application for review.
Whilst an appeal from that decision was heard by the High Court of Australia on 24th May 2007, I am not aware of any decision having been handed down, although it is a decision that I await with great interest. In my view, the current state of the law is that the decision of the Full Court of the Federal Court in SZFDE is binding upon the Federal Magistrates Court.
In my view the Applicant has not made out any jurisdictional error.
I am of the view that it is quite clear that the Tribunal's decision was based on its adverse assessment of the Applicant's credibility and credibility is a factual finding. There was, in my view, sufficient evidence from the inconsistencies and discrepancies in the Applicant's evidence to the Tribunal and to the previously constituted Tribunal, from the matters in the Applicant's protection visa application which were brought to the Applicant's attention in the s.424A letter and from the Applicant's statutory declarations in reply to the two s.424A letters that meant that it was open to the Tribunal to form the view of the Applicant's credibility that it did. That was a matter for the Tribunal and it was on the question of the Applicant's credibility or lack thereof that the matter was ultimately decided.
No jurisdictional error has been made out.
I am mindful of the fact that the Applicant is not legally represented in these proceedings. I have read through the decision myself independently of either the Applicant's claims or the submissions on behalf of the First Respondent Minister and I am unable to discern any arguable case of a jurisdictional error. The decision therefore is a privative clause as defined by s.474 of the Migration Act. A privative clause is final and conclusive and is not open to declaration or orders in the nature of certiorari or mandamus. It follows that the application will be dismissed with costs.
There is an application for costs on behalf of the First Respondent Minister. In my view, costs should follow the event. The amount sought, $5,000.00 is, in my view, an appropriate figure. It was necessary for there to be directions hearings before a Registrar of the Court on 15th February and 27th April 2007, there was a hearing before me on 3rd July this year and there is this appearance today in order to hand down the decision.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 10 August 2007
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