SZIVM v Minister for Immigration and Citizenship
[2007] FCA 2052
•15 November 2007
FEDERAL COURT OF AUSTRALIA
SZIVM v Minister for Immigration and Citizenship [2007] FCA 2052
MIGRATION – Tribunal’s role and responsibilities – limited scope of obligations under s 424A(1) of the Act
Migration Act 1958 (Cth) ss 36(2)(a), 65(1) and 424A(1)
Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte Applicant S154/2002 (2003) 201 ALR 437
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471SZIVM v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1729 OF 2007GRAHAM J
15 NOVEMBER 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1729 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZIVM
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAHAM J
DATE OF ORDER:
15 NOVEMBER 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent Minister’s costs fixed in the agreed sum of $1,500.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1729 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZIVM
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAHAM J
DATE:
15 NOVEMBER 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The Migration Act 1958 (Cth) (‘the Act’) makes provision for applications for visas and for the consideration by the Minister of such applications. Section 65(1) of the Act relevantly provides:
‘65(1)After considering a valid application for a visa, the Minister:
(a) if satisfied that:
…
(ii)the other criteria for it prescribed by this Act or the regulations have been satisfied; …
…
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.’
The relevant criterion for a Protection (Class XA) visa is to be found in s 36(2)(a) of the Act, which provides:
‘36(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; …’
The reference to the Refugees Convention is to the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967, and I will collectively refer to the Convention as amended by the Protocol as ‘the Refugees Convention’.
Article 1A of the Refugees Convention relevantly provides:
‘For the purposes of the present Convention, the term “refugee” shall apply to any person who:
(2) … owing to well-founded fear of being persecuted for reasons of ... religion ... is outside the country of his nationality and … owing to such fear, is unwilling to avail himself of the protection of that country; …’
Proceedings before the Refugee Review Tribunal (‘the Tribunal’) are not adversarial but inquisitorial; the Tribunal is not in the position of a contradictor of the case being advanced by an applicant. A Tribunal Member conducting the inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair. In an application for review before the Tribunal, it is for the applicant to advance whatever evidence or argument he wishes to advance, and for the Tribunal to decide whether his claim has been made out. It is not part of the function of the Tribunal to seek to damage the credibility of an applicant’s story in the manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation.
The Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark upon (see per Gummow and Heydon JJ in Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57] – [58]; see also SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64 at [30]).
As was pointed out in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553, the relevant provisions of the Act do not require that the Tribunal actively assist an applicant in putting his or her case, nor does it require the Tribunal to carry out an inquiry in order to identify what that case might be.
In relation to a hearing before the Tribunal, it is clear that the Tribunal should afford an opportunity to give evidence and present arguments relating to the issues arising in respect of the decision under review. Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of pre-judgment (per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 at [48]).
Section 424A(1) of the Act relevantly provides:
‘424A(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.’
In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 which was handed down on 13 June 2007, the High Court gave close attention to the circumstances in which section 424A would be engaged. At [22] Gleeson CJ, Gummow, Callinan, Hayden and Crennan JJ drew attention to the ‘limited scope of s 424A’ and at [15] and [21] they said:
‘[15] … Section 424A does not require notice to be given of every matter the tribunal might think relevant to the decision under review. …
…[21] … Section 424A has a more limited operation than the appellants assumed: its effect is not to create a back-door route to a merits review in the federal courts of credibility findings made by the tribunal. …’
Importantly, their Honours held at [17] that:
‘… The use of the future conditional tense (would be) rather than the indicative strongly suggests that the operation of s 424A(1)(a) [was] to be determined in advance – and independently – of the tribunal’s particular reasoning on the facts of the case.’
(Emphasis added)
At [18] their Honours approved a passage in the joint reasons for judgment of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477 saying:
‘[18] … Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”:
…does not encompass the tribunal’s subjective appraisals, thought processes or determinations … 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 …
If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. …’
(Footnotes omitted)
At [17] their Honours pointed out that the Tribunal did not operate in a statutory vacuum and that its role was dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. They pointed out that the appropriate criterion in respect of a protection visa was to be found in ‘s 36(1)’ (sic) of the Act. They proceeded to say at [17]:
‘… The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, [the operation of s 424A(1)(a) having to be determined in advance – and independently - of the tribunal’s particular reasoning on the facts of the case] it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be “information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. …’
(Emphasis added)
The appellant in this case signed an application for a Protection (Class XA) visa in the name which I will identify as ‘L’ (family name) and ‘G … Q …’ (given names). He has been identified for the purposes of these proceedings as SZIVM. The application for a protection visa indicates that the appellant was born in Henan in the People’s Republic of China on 29 September 1960.
On 28 February 2005 a passport was issued in the name of ‘LGQ’. On or about 16 August 2005 a temporary business visa was issued by the Commonwealth of Australia, which was endorsed on that passport, allowing entry into Australia for a period of three months. On or about 24 August 2005, the passport was endorsed with a Hong Kong entry permit.
On 26 August 2005 the appellant arrived in Melbourne having travelled on the passport to which reference has been made.
The appellant’s application for a Protection (Class XA) visa was lodged on 5 October 2005. On 23 November 2005 the Minister’s delegate refused to grant a visa to the appellant. On 23 December 2005 he applied to the Tribunal for a review of that decision. He was invited to, and attended, a hearing before the Tribunal on 15 February 2006.
On or about 13 February 2006 the appellant forwarded a letter to the Tribunal by facsimile which included an assertion that the appellant’s real name was not as indicated on the passport. It asserted that his real name was another name and that he was born on 20 August 1972. He provided names for his wife and asserted that he had a son bearing his surname and a daughter bearing his surname, that surname being a different name from that which was included in the passport and in the application for a protection visa.
On 17 March 2006 the Tribunal as then constituted decided to affirm the decision of the Minister’s delegate to refuse the application for a protection visa. That decision was handed down on 6 April 2006.
On 21 September 2006 Lloyd-Jones FM made orders by consent quashing the decision of the Tribunal of 17 March 2006, and ordering that the Tribunal reconsider the matter according to law.
On 25 October 2006 an invitation was extended to the appellant to attend a hearing before the Tribunal on 7 December 2006. A further communication was sent to the Tribunal requesting a rescheduling of the hearing, and on 24 November 2006 the new hearing date of 22 December 2006 was fixed.
In the Tribunal’s invitation of 25 October 2006, the Tribunal informed the appellant that it had considered the material before it in relation to his application, but was unable to make a decision in his favour on that information alone. He was invited to come to a hearing of the Tribunal ‘to give oral evidence and present arguments in support of [his] claims’. He was also advised that he could ask the Tribunal to obtain oral evidence from another person or persons.
On 22 December 2006 the appellant attended a hearing before the Tribunal, which lasted from approximately 1:35 pm until 3:25 pm on that day. Thereafter, on 16 January 2007 the Tribunal decided to affirm the decision of the Minister’s delegate to refuse the appellant’s application for a protection visa. That decision was handed down on 27 February 2007.
An application for review of that decision was filed in the Federal Magistrates Court of Australia on 3 April 2007. It was heard by Driver FM on 8 August 2007, his Honour ordering that the application be dismissed and that the appellant pay the respondent Minister’s costs in the amount of $5000.
On the hearing of the application in the Federal Magistrates Court of Australia, it would appear that an affidavit of S.M. Bragg was read, which attached a transcript of the hearing in the Tribunal on 22 December 2006. The transcript is, needless to say, expressed in the English language and during the course of the hearing of the appeal I have invited the interpreter to interpret large passages from that transcript to ensure that there was no misunderstanding in the mind of the appellant about what was there in relation to the alleged change of identity.
In the course of his oral submissions, the appellant said that he had asked the Tribunal to make further investigation about his true identity and the Tribunal said words to the effect, ‘that is unnecessary’. I have been unable to find anything in the transcript to support the submission that the Tribunal said that further investigation concerning the appellant’s true identity was ‘unnecessary’. The closest that the transcript comes to dealing with that subject-matter is to be found in that part of the transcript which is reproduced at page 141 of the appeal book in the following exchange:
‘TMWell why did you wait till 2 days before the hearing and your name if the reason I am asking you this sir is that the fact that you haven’t told someone about your claimed name until 2 days before the Tribunal considered your application for review causes me to doubt that information about the name is correct. [The reference to the hearing was to the initial Tribunal hearing on 15 February 2006]
AI wasn’t there to say that before when I first came but 2 days before the hearing sorry one month before the hearing I told I received something about this hearing and 2 days before I thought if I didn’t tell them if I didn’t tell then I would still be cheating the Australian government. So I want to say when this passport was handed in for visa application in China the photo on it was not mine and you can even check that out on the web.
TM I am not going to check that out on the web. …’
(Emphasis added)
Following the dismissal by the learned Federal Magistrate of the appellant’s application for review of the Tribunal’s decision following the second Tribunal hearing on 22 December 2006, the appellant filed a Notice of Appeal in this Court on 29 August 2007.
The grounds of appeal specified in the Notice of Appeal are two in number, and bear a strong resemblance to those specified in the application for Constitutional writ relief filed by the appellant in the Federal Magistrates Court of Australia. The first ground of appeal was expressed as follows:
‘1.The applicant claims that he (sic) RRT acted capriciously and arbitrarily and formed its assessment of satisfaction on illogical reasoning. The current Tribunal repeated the error that the previous Tribunal made. The current Tribunal made an incorrect conclusion about the applicant’s identity. The applicant claimed to be Mr [Z…Y…] but entered Australia using a fraudulent passport showing the name of [L… G…]. The Tribunal failed to accept the various documents the applicant has provided to support his true identity. The Tribunal failed to undertake further examination to verify the applicant’s true identity despite the applicant has (sic) asked the Tribunal to do so.
The Tribunal did not accept that the appellant was a credible witness. That finding was significantly influenced by the late provision to the earlier Tribunal hearing of the claim in respect of identity, to which reference has been made. The Tribunal found that the first claim of a different identity was one which was made two days before the earlier Tribunal hearing. The Tribunal said:
‘… Given that the Tribunal does not consider that the applicant is a truthful witness it finds that these documents are not reliable evidence of the facts in/portrayed in them. The Tribunal finds that he invented the claim about his identity to assist his application for protection in that it would serve to explain how he managed to leave China on the passport that he presented to the Tribunal in his own name.’
The passport referred to of course was that to which I have made reference earlier in these reasons.
It seems to me that it was entirely open to the Tribunal to reach the conclusion which it did with respect to the design of the appellant in relation to the submission of the claim in respect of substituted identity.
The appellant has not correctly summarised what transpired at the Tribunal hearing when he asserted that he had asked for further investigation to be made by the Tribunal about his true identity and about the Tribunal responding with words to the effect that that was unnecessary.
As has previously been pointed out in these reasons, it was not for the Tribunal to actively assist the appellant in putting his case, and it was for him to advance whatever evidence he wished to advance in support of his claim for a protection visa. It was no part of the Tribunal’s role to undertake an investigation for him in the manner that he suggested.
The second ground of appeal was expressed as follows:
‘2. The applicant claims that The (sic) RRT failed to afford the applicant procedural fairness. The current Tribunal failed to give the applicant information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review and the Tribunal failed to invite the applicant to comment on it. By failing to do so the Tribunal breached the Section 424A(1) of the Migration Act 1958. The current Tribunal rejected the applicant’s claims about his second daughter who could not be registered in China. The Tribunal rejected this claims (sic) because the Tribunal thought it was a recent invention by the applicant to assist his application. The Tribunal failed to invite the applicant to comment why he had not made such claims earlier.’
It is abundantly clear from the authorities referred to earlier that it was no part of the Tribunal’s responsibility to give the appellant a running commentary on his claims. It is also abundantly clear that doubts and concerns which the Tribunal may have had about the genuineness of the appellant’s claim concerning his second daughter were not matters which came within the reach of s 424A(1) of the Act.
When I asked the appellant to address me on the second ground of appeal, he indicated that he was not familiar with Australian law. It was apparent to me that he had no knowledge whatsoever of s 424A(1) of the Act. His explanation for the ground appearing in the Notice of Appeal was simply that he asked a friend to have a look at it [referring to the second Tribunal decision] and his ‘friend’ said that the Tribunal had breached s 424A. I am satisfied that it did not breach that section.
The Tribunal said in relation to the second daughter:
‘The applicant also said at the end of the hearing before the present Tribunal that he has second daughter who cannot be registered in China and cannot get an education. He told this Tribunal that he has told no one else this before. To the extent that the applicant is claiming that he/his family member is/was persecuted in China for this reason the Tribunal finds that this claim is recent invention to assist his application for protection. In the Tribunal’s view if this claim were genuine he would have made it before this Tribunal hearing and his oral evidence to the Tribunal is that he did not. There is no plausible evidence before the Tribunal that the applicant has a second daughter as he claims.’
In my opinion it was open to the Tribunal to draw these conclusions in relation to that matter.
The Tribunal concluded that it did not accept that the applicant left China and/or fears to return there for the reasons which he claimed. In his application for a protection visa, the applicant had essentially indicated that in about 1995 he became associated with the underground Christian group in China known as Hu Han Pai, also known as the ‘Shouters’ group. His claim had been that he had an involvement in that group for a period of perhaps one year, following which there was a long period when ‘we did not practice because the local government kept monitoring us’. The appellant’s case was that he had in 2004 re-organised a small group consisting of four people ‘all from the company I worked for’. He gave them copies of his Bible and other publications. He says that he didn’t know about how the police found out about his group but one day they:
‘… came to our company and searched for us. Two of us were detained. I and one other member were not in the office and we ran away after hearing the news.’
The appellant said that he came to Australia on a visitor visa so that the Chinese government could not find him.
Not only do the grounds of appeal fail, it seems clear that it was open to the Tribunal on the material before it to conclude that the appellant did not have a well-founded fear of persecution for reason of religion.
In my opinion the appeal should be dismissed with costs.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate:
Dated: 19 December 2007
The Appellant appeared in person. Counsel for the First Respondent: P C Silver Solicitor for the First Respondent: Clayton Utz The Second Respondent entered a submitting appearance. Date of Hearing: 15 November 2007 Date of Judgment: 15 November 2007
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