SZIVB v Minister for Immigration & Anor

[2006] FMCA 1421

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIVB v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1421

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal complied with its obligations under s.424A(1) of Migration Act 1958 (Cth) – whether Refugee Review Tribunal fairly and carefully assessed applicant’s claims.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.422B; 424A(1); 425; 474; pt.8 div.2

VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214
SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62

Applicant: SZIVB

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1335 of 2006

Judgment of: Emmett FM

Hearing date: 12 September 2006

Date of Last Submission: 12 September 2006

Delivered at: Sydney

Delivered on: 12 September 2006

REPRESENTATION

The Applicant appearing on his own behalf

Counsel for the Respondent: Mr G. Johnson

Solicitors for the Respondent: Mr J. Bird, Phillips Fox

ORDERS

(1)I order that the applicant pay the first respondent's costs in the amount of $5000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1335 of 2006

SZIVB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1.This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for the judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 3 April 2006. 

2.The applicant was born on 9 January 1984 and claims to be from the People's Republic of China (“the PRC”) and of Chinese ethnicity and Christian faith. 

3.

The applicant arrived in Australia on 31 August 2005 and on

14 October 2005 lodged an application for a Protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”). 

4.On 30 November 2005 the delegate of the first respondent (“the Delegate”) refused the applicant's application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).

5.On 3 January 2006, the applicant lodged an application for review of the dDelegate's decision by the Tribunal.  On 16 February 2006, Tthe applicant attended a hearing before the Tribunal on 16 February 2006 and gave oral evidence to the Tribunal.  The applicant also had the assistance of a migration agent and an interpreter at the hearing. 

6.The Tribunal recited with some particularity the claims made by the applicant orally at the hearing.  The Tribunal also had regard to a post-hearing submission received by the Tribunal on 2 March 2006, together with witness statements in support of her application. 

7.The Tribunal summarised the applicant's claims as a claim by the applicant to be a Shouter and to have experienced harm in the past by reason of her association with the Shouters.  The Tribunal did not accept that the applicant has had a long association with the Shouters nor that she is a genuine follower of the Shouters or that she was detained by the Chinese authorities by reason of her religious practices.  The Tribunal based that conclusion on its finding that the applicant's oral evidence was “"unconvincing in that it was vague and highly generalised”".

8.The Tribunal noted that the applicant's claims were “"bereft of personal and specific detail”" and the Tribunal was not convinced that the applicant was truthful about her experiences.  The Tribunal found the applicant's post-hearing submission to be “"bereft of particularised and distinct detail”".  I note that it would appear on a fair reading of the decision that tThe applicant was given an opportunity to provide a post-hearing submission to address concerns raised by the applicant during the hearing about the lack of detail in respect of her claims.

9.The Tribunal did not accept that the applicant had been arrested prior to her arrival in Australia and noted that her claims of having needed medical treatment were “"vague and evasive”".  The Tribunal noted the letters provided to it by the applicant in support of the applicant's claims, however, it was found that the letters were “"devoid of detail”".  The Tribunal also had regard to photographs provided to it by the applicant in support of her claims, however, the Tribunal found that the photographs did not establish that the applicant was attending a church or religious gathering, rather they depicted that the applicant was with a group of people.

10.

The Tribunal concluded that when it considered in totality the evidence before it, the “"unsatisfactory nature of the applicant's evidence”" led it to reject the applicant's claims of association with the Shouters or that she had come to the adverse attention of the Chinese authorities and had been detained in the PRC.  Further the Tribunal did not accept that the applicant would be detained if she were to return to the PRC. 

In the circumstances the Tribunal concluded that it was not satisfied that the applicant has a well-founded fear of persecution by reason of her religion or any other Convention related reason and was therefore not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

11.On 9 May 2006, the applicant filed an application in this Court seeking judicial review of the Tribunal's decision.  On 3 July 2006, the applicant filed an amended application. relying on the following grounds Despite being asked on more than one occasion which application the applicant sought to rely upon this afternoon, the applicant was unable to identify which document.  However, on perusal of both I am satisfied that any claim made in the initiating application is also incorporated into the grounds identified in the amended application.  The amended application is in the following terms:

“1. Dr.Irene [sic] O’Connell, the Presiding Member of the Tribunal (“the Presiding Member”), failed to comply with its obligation under Section 424A(1) of the Act.

Particulars:

1.1During the Tribunal’s hearing, the Presiding Member raised with me that my “…statement of claims which was written in the first person corresponded closely to a statement of claims before the Tribunal from another Applicant…” The Presiding Member was then of a view that “…given that it was a personal statement written in the first person but that certain phrases were exactly the same as phrases in another application then it raised reservation in the Tribunal’s mind as to the genuineness …” of my claims.

1.2Regarding to above-mentioned issue, my previous advisor (Ms.Shuang Zhang, a registered migration agent) stated that “she was responsible for the statement of claims and that she had used standard paragraphs in much the same way as standard paragraphs are used in decisions. She stated that they would insert the Applicant’s individual claims into standard paragraph and that for this reason the Applicant’s statement very much like that of another Applicant…”

1.3Further issue arising from Tribunal’s hearing was that the Presiding Member “pointed out to the Applicant that she had not provided any written statement to the Tribunal hence the material before the Tribunal was simply that of a standard statement…”; but I responded that I had provided “a written statement setting out in detail my particular claims…”.

1.4I believe that two of the above-mentioned issues were main reasons why the Presiding Member made a finding, which was definitely incorrect, that my evidence “to the Tribunal most particularly that it was bereft of personal and specific detail and that as such the Tribunal was not convinced that the Applicant was recounting actual lived experiences…”.

1.5It was actually arising an issue which was in relation to my previous advisor; and I might be a victim of her “irresponsible attitude” to insert the Applicant’s individual claims into standard paragraph…”; but my previous advisor never explained it to me during the whole procedure. Even during the Tribunal’s hearing, she discussed relevant issue with the Presiding Member in English; and I did not know what they talked about, because I did not understand any English (the interpreter did not make proper translation at that time). It might also be owing to my previous advisor’s “irresponsible attitude” or because she tried to hide something from me that my post hearing submission, which was actually prepared by the advisor, had been found by the Presiding Member that “this submission to be bereft of particularized and distinct detail…”.

1.6The issue, here, is obviously not talking about my relationship with my previous advisor; instead, it is the issue that the Presiding Member failed to comply with its obligation under Section 424A(1) of the Act.

1.7As a matter of fact, if the Presiding Member, complied with the Section 424A (1) of the Act, had made me to understand the issue, or which might be called as “the information”; and particularly, if the Presiding Member had given me a chance, fairly and properly, to comment on the negative issue or the negative information; I might have been able to convince the Tribunal that I do indeed have a well-founded fear of being persecuted on my return; and at least, I might have been able to arise the issue mentioned in above Paragraph 1.5.

1.8Unfortunately, the Presiding Member failed to comply with its obligation under Section 424 A(1) of the Act.

2. The Presiding Member failed to comply with its obligation under Section 425 of the Act.

Particulars:

2.1 I do not think that the Presiding Member has created a fair chance for me to give my oral evidence in support of my claims during the Tribunal’s hearing.

2.2 During the Tribunal’s hearing, I was only allowed to respond the questions put by the Presiding Member; and mostly I was required to answer the questions, simply and directly. In some occasions, I was interrupted by a new question without fully reply to the old one; and sometimes, the interpreter was unable to interpret some issues, accurately and properly, especially some religious terms or religious issues.

2.3 Also, the Presiding Member did not make me understand the negative issues which were obviously in relation to my review application during the Tribunal’s hearing, such as the issue mentioned in above Paragraph 1.5; and as a result, I did not have a genuine chance to comment on the issue.

3. The Presiding Member’s decision has failed to consider important independent country information.

Particulars

[not extracted here]

4. The Presiding Member’s decision has completed [sic] ignored important independent country information.

Particulars

[not extracted here]

5. In summary, I have never ever agreed that my application has been assessed by the Tribunal fairly and carefully.”

1.Despite being asked on more than one occasion which application the applicant sought to rely upon this afternoon, the applicant was unable to identify which document, however, on perusal of both I am satisfied that any claim made in the initiating application is also incorporated into the grounds identified in the amended application.

RECORDED  :  NOT TRANSCRIBED

12.I note that the first respondent does not suggest otherwise.  In the circumstances I propose to deal with each of the grounds.  Ground 1 is a complaint by the applicant of a failure by the Tribunal to comply with its obligations under s.424A(1) of the Act. At the heart of this complaint is a passage in the Tribunal's decision in the ‘Claims and Evidence’ section of its decision where the Tribunal states the following:

“The Tribunal raised with the Applicant that her statement of claims which was written in the first person corresponded closely to a statement of claims before the Tribunal from another Applicant. The Applicant responded that other people may have the same difficulties as herself. The Tribunal responded that given that it was a personal statement written in the first person but that certain phrases were exactly the same as phrases in another application then it raised reservations in the Tribunal’s mind as to the genuineness of her claims. The Adviser stated that she was responsible for the statement of claims and that she had used standard paragraphs in much the same way as standard paragraphs are used in decisions. She stated that they would insert the Applicant’s individual claims into standard paragraph and that for this reason the Applicant’s statement appeared very much like that of another Applicant.

The Tribunal also pointed out to the Applicant that she had not provided any written statement to the Tribunal hence the material before the Tribunal was simply that of a standard statement. The Applicant agreed to provide a written statement setting out in detail her particular claims.”

13.Particulars 1.1, 1.2, 1.3, 1.5, 1.6 and 1.7 all arise out of the question as to whether or not that information provided any part of the Tribunal's reasons for affirming the decision under review.

14.It is clear from the Tribunal's decision that it was the applicant's oral evidence that it found to be unconvincing, vague and highly generalised and that led to the rejection of her evidence.  True it is that the Tribunal does state in its decision that the Tribunal raised with the applicant concerns about her evidence, particularly that it was “bereft of personal and specific detail and that as such the Tribunal was not convinced that the Applicant was recounting actual lived experiences.” 

1.However, Aa fair reading of the Tribunal's decision, and in particular, of the paragraph from the decision quoted above, make it clear that, whilst the Tribunal had concerns about the way in which the applicant's statement before it was put together in respect of itsthat it bore similarity to other claims from another applicant, the Tribunal noted that it raised such concerns. The Tribunal noted and that the applicant's adviser stated that she was responsible for the statement of claims and that she had used standard paragraphs in the preparation of that statement.

1. She explained to the Tribunal the process by which she prepared statements.  There is nothing to suggest that that explanation by the Tribunal was not accepted. 

2. In those circumstances, and on a fair reading of the Tribunal's findings about the applicant's oral evidence, it seems to me that the similarity of the applicant's claims to claims made by another applicant, the concerns that were initially raised by the Tribunal appear to have been satisfied by the explanation provided by the adviser.  Accordingly, the Tribunal’s concerns about the similarities can have formed no part of the Tribunal's reasons for affirming the decision under review.

   17.In relation to 1.4 of the applicant's grounds, the applicant refers to the Tribunal's finding that the applicant's evidence was “bereft of personal and specific detail and that as such the Tribunal was not convinced that the Applicant was recounting actual lived experiences.” I accept the submission of the first respondent that that statement discloses no more than the thought processes of the Tribunal and as such does not enliven the obligations under s.424A(1) of the Act (VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (“VAF”) per Moore J at [24] and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 (“SZEEU”) per Allsop J at [207] and per Moore J at [18].) 

   1.I note in particular the paragraphs to which the first respondent referred the Court in respect of the authorities of VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (“VAF”) and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 (“SZEEU”).  In particular para 24 in VAF and in particular para 207 of Allsop J's decision in SZEEU.  For completion I note that para 24 of VAF is cited by Moore J in SZEEU at para 18.

   1.Paragraph 24 of VAF states as follows:

   “... there is now a considerable body of case law concerned with the compass of the term "information" in its s 424A(1) setting. The following propositions emerge from it:

   (i) the purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [104]. However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74;

   (ii) the word "information" in s 424A(1) has the same meaning as in s 424: Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 at [20]; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win, at [19] – [22]; and

   (iii) the word does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: Tin at [54]; Paul at [95]; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25]; approved [2002] FCAFC 120; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [26] – [29].”

   1.Paragraph 207 of SZEEU states the following per Allsop J:

   “[207] The word ‘information’ has been said not to encompass or extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [26]-[29], cited in VAF at [24]. It will be necessary in due course to explain the limits of this expression of view.”

   18.Accordingly, there was no information before the Tribunal that formed part of the Tribunal's reason for affirming the decision under review and therefore enlivened the obligations identified in s.424A(1) of the Act. Accordingly, ground 1 is not made out.

   19.Ground 2, as particularised, appears to be made up of the following complaints;

   i)that the Tribunal did not give the applicant a fair chance to give oral evidence in support of her claims at the hearing;

   ii)and that the applicant was only allowed to respond to questions;

   iii)that the applicant was interrupted; and

   iv)that the Tribunal did not make clear to her the concerns it had arising out of the similarity of her statement with that of another. 

   20.There is no transcript provided before me.  I note that the applicant attended a hearing before the Tribunal at which she gave evidence and had the assistance of a migration agent.  There is nothing on the face of the Tribunal decision that would support the contentions made by the applicant in particulars 2.1 and 2.2 and 2.3.

   21.In relation to tThe applicant's applicant particularly complainedt that the Tribunal did not make her understand the negative issues relating to the similarity of her statement with that of another., sSuch a complaint is neither here nor there where a fair reading of the Tribunal’s decision that part of the evidence discloses that the Tribunal raised its concerns and noted in detail the adviser's total acceptance of responsibility for the manner in which the applicant's statement was drawn.  In light of the finding I have made in respect of ground 1, that the Tribunal’s concerns about the similarity of the applicant’s statement with the statement of another, that part of the Tribunal's decision did not form any part of the Tribunal's reason for affirming the decision under review, such complaint is not capable of sustaining an allegation of breach of s.425 of the Act. Accordingly, ground 2 is not made out.

   22.Grounds 3

   and 4 relate to a complaint by the applicant that the Tribunal failed to consider important independent country information and ignored important independent country information. 

   
   

   The independent country information is relevant only to the issue of whether or not Shouters suffer persecution in the PRC.  The Tribunal did not make a finding that Shouters did not suffer persecution in the PRC. 

   23.The Tribunal's conclusions arose solely from its evaluation of the applicant's evidence before it and the independent information played no part in its conclusion. 

   24.In those circumstances grounds 3 and 4 are misconceived in that independent information was not relevant to the conclusions made by the Tribunal in relation to its rejection of the applicant's claim.

   25.Accordingly, grounds 3 and 4 are not made out.

   26.Ground 5 appears to cavil with the findings and conclusions made by the Tribunal and to that extent, insofar as it seeks merits review, it is rejected.  A fair reading of the Tribunal's decision does not lead to the conclusion that the Tribunal did not assess fairly and carefully the applicant's claim.  Indeed the Tribunal disclosed in some detail the applicant's claims and plainly understood the totality of the evidence upon which the applicant relied.  The Tribunal also had regard to post-hearing claims and further evidence. 

   27.

   It is a matter for the Tribunal the weight it places on the evidence before it.  The Tribunal appears to have placed little or no weight on the applicant's letters of support and photographs and the Tribunal provides reasons why it placed little or no weight on that material. 

   
   

   In respect of the letters, it notesd that they are devoid of detail and that two of them are simply one line statements. and iIn relation to the photographs the Tribunal noteds that they simply show the applicant standing with a group of people and “do not establish that the Applicant is attending a church or religious gathering.”

   28.Those are findings that were open to the Tribunal on the evidence and material before it. There was no obligation on the Tribunal to raise with the applicant its thought processes in respect of the weight it gave evidence given to the Tribunal by the applicant. Section 422B of the Act is an exhaustive statement of the requirements of the Tribunal in respect of natural justice and indeed the Full Court of the Federal Court in (SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62). has confirmed that such is the consequence of s.422B of the Act.

   29.In the circumstances, there was no obligation on the Tribunal to raise with the applicant its concerns with information that is given by the applicant to the Tribunal for the purposes of the review.

   30.In the circumstances, the Tribunal's decision is not affected by jurisdictional error. Accordingly it is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere. The application is dismissed.

   RECORDED  :  NOT TRANSCRIBED

   ORDERS DELIVERED

   I certify that the preceding twenty-eight thirty (3028) paragraphs are a true copy of the reasons for judgment of Emmett FM

   Deputy Associate:  S.Tsang

   Date:  15 22 September 2006