SZIVY v Minister for Immigration
[2007] FMCA 451
•5 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIVY v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 451 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Status – refugee status – refusal. Visa – protection visa. No duty to make enquiries. Allegation of capriciousness, arbitrariness and illogical reasoning. |
| Migration Act 1958, ss.91X |
| Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 SZAPC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 995 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] 194 ALR 749 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2004) 168 ALR 407 Minister for Immigration & Ethnic Affairs v Liang (1996) 185 CLR 259 |
| Applicant: | SZIVY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1428 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 13 March 2007 |
| Date of Last Submission: | 13 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 April 2007 |
REPRESENTATION
The applicant appeared in person.
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1428 of 2006
| SZIVY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 15 May 2006, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) dated 28 March 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated
29 October 2005 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant as follows:
The Applicant stated that his father had died when he was
13 years of age and that his mother married a Taiwanese person and moved to Taiwan when the Applicant was about 14-15 years of age. He stated he is the youngest child and that when his mother went to Taiwan he was independent and remained in China. He stated that he had some five brothers and sisters whom he described as normal people, unlike himself, as he is a businessman and travels extensively. (Court Book (“CB”)
page 95).The applicant claims to have been persecuted and to fear future persecution in China because of political opinions which are imputed to him.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-7 of the Tribunal’s decision (CB 94-97). Relevantly, they are in summary:
a)in August 2003 the applicant travelled to Taiwan to visit his mother who resides there and then returned to China. In May 2004 there were elections in his village but a dispute arose regarding the fairness of the elections. The applicant became embroiled in this dispute and spoke about “how Taiwanese were free to vote and hoe [sic] democratic Taiwan was…”;
b)the dispute erupted into “group fighting” and the police were called in and people were arrested. The applicant, however, ran away to Guangdong where he remained in hiding from May 2004;
c)the applicant came to Australia on a false passport in August 2005 because he feared that he would not be able to obtain a passport in his own name as he understood that the police were looking for him and “was uncertain if there was any criminal charge on him”;
d)he fears harm from the Chinese authorities because he believes that they have “linked his visit to Taiwan with his participation in the group fighting”.
The Tribunal summarized the applicant’s claims in the following terms:
The Applicant claims that he fears harm by reason of his political opinion. He claims that he spoke out against corruption in local elections in May 2004 and that this combined with his visits to Taiwan resulted in the authorities imputing him with a pro-Taiwanese, pro-democracy political opinion. He claims that he fears harm on returning to China by reason of this imputed political opinion, his illegal departure from China and that his mother intends to sue the Chinese government. (CB 97).
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal did not accept that the applicant confronted local officials about their corrupt electioneering practices in May 2004 or that this, combined with his frequent travel to Taiwan, meant he was imputed with a political opinion because:
i)the applicant’s oral evidence in respect of his claimed confrontation with local officials in May 2004 was vague, ill-defined and unclear;
ii)the applicant was vague and hesitant when asked to elaborate on the so-called corrupt practices he claimed to be confronting;
iii)the Tribunal was unpersuaded, given that the applicant had no history of political activism or commitment and that he claimed corruption to be a common and well-known occurrence in China, that he would confront local officials in May 2004 as he claims; and
iv)as the applicant had made a number of trips to Taiwan and to Singapore since 2001 it could not be said he had suddenly discovered democracy;
b)the Tribunal accepted that the applicant had travelled to Taiwan on a number of occasions but did not accept that the mere fact of his travelling to Taiwan would result in him being imputed with a particular political opinion, observing that the applicant:
i)described himself as a businessman who frequently travelled for business;
ii)did not claim to have been engaged in political activities other than observing the workings of democracy in Taiwan; and
iii)had made several trips to Taiwan prior to 2004 and did not claim to have experienced difficulties with the Chinese authorities by reason of his travel;
c)the Tribunal did not accept that the applicant’s mother intends to sue the Chinese government and that the applicant would face harm as a result should he return to China, observing:
i)the claim was speculative and unsubstantiated;
ii)the applicant was unable to elaborate in any meaningful way on why his mother would sue the Chinese government; and
iii)the Tribunal was not satisfied that the applicant departed China illegally on a false passport, although the applicant presented to the Tribunal several Chinese documents relating to a Mr [A] and a Mr [B]. While accepting that the applicant may have used a false passport to enter Australia it was unable to be satisfied as to the manner of his departure from China given the variety of travel documents which he presented to the Tribunal.
The Tribunal concluded:
The Tribunal did not find the Applicant to be credible on several key aspects of his claims … At the hearing the Applicant did not impress the Tribunal in responses in giving evidence which was often weak, unconvincing and at times evasive. (CB 97).
Proceedings in this Court
The grounds of the application can be summarised as follows:
a)the Tribunal failed to afford the applicant procedural fairness in that it could have undertaken further examination to make a correct finding of his identity but did not do so; and
b)the Tribunal acted capriciously and arbitrarily and formed its assessment of satisfaction on illogical reasoning.
Dealing with each of these grounds in turn:
The Tribunal failed to afford the applicant procedural fairness in that it could have undertaken further examination to make a correct finding of his identity but did not do so.
This ground implies that the Tribunal did not accept the applicant to be the person who he claimed to be. However, this misunderstands the Tribunal’s discussion of the variety of travel documents which the applicant had presented to the Tribunal. Its conclusion on those documents was that it did not know which documents the applicant had used in order to leave China and it accepted that the applicant may have used a false passport to enter Australia. However, the Tribunal accepted without adverse comment the name in which the application for a protection visa had been made and noted that the applicant had documents in more than one name.
But, in any event, any confusion as to the applicant’s true name, which I do not accept was evident, would not affect its conclusions set out in paragraphs 7 and 8 above.
The relevant issue in relation to the applicant’s identity was whether he had departed China illegally on a false passport and would therefore face punishment on his return for this reason. The evidence presented to the Tribunal by the applicant left it in a position where it was unable to make a conclusion as to whether the applicant had left China using documentation citing his correct name or documents citing his false name. Clarification, were it needed, of his true name would not have affected this situation.
But in any event, the Tribunal was under no obligation to make inquiries. This is made clear in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 where, at 21 – 22 [42], [43] Gummow and Hayne JJ said, Gleeson CJ agreeing at 13 [1]:
The second ground of alleged error amounts to a finding by Selway J that the Tribunal was under a duty to inquire as to the effects of PTSD. This is apparent from his Honour's judgment:
"But, having found that the [respondent] was suffering from PTSD there was no evidence before the Tribunal which would have enabled it to assess whether or not any of the evidence the [respondent] gave was reliable. Having (wrongly) diagnosed that the [respondent] was suffering from PTSD it was an error of law for the Tribunal then to proceed to make credibility findings in relation to the [respondent's] evidence without evidence as to what effect the PTSD might have on the [respondent's] capacity to give evidence." (emphasis added)
This ground of error is misconceived for two reasons. First, there was evidence before the Tribunal to assist it in determining how to deal with the question of unreliability. There was the Turner report and the fact that the respondent did not object to providing evidence either at the hearing or by affidavit following the hearing. Secondly, whilst s 427 of the Act confers power on the Tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so. Rather, s 426 provides that, even if an applicant requests that the Tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the Tribunal is not required to obtain such evidence. Thus, the Tribunal is under no duty to inquire. [footnotes omitted]
Consequently, this ground is not made out.
The Tribunal acted capriciously and arbitrarily and formed its assessment of satisfaction on illogical reasoning.
If it can be demonstrated that the Tribunal’s decision has been affected by illogicality then this may be indicative of jurisdictional error. As Gummow and Hayne JJ also said in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at 20 – 21 [38], Gleeson CJ agreeing at 13 [1]:
The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith. To say that a decision-maker must have acted in good faith is to state a necessary but insufficient requirement for the attainment of satisfaction as a criterion of jurisdiction under s 65 of the Act. However, inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error. [footnotes omitted]
In SZAPC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 995, Madgwick J discussed the authorities dealing with the question of illogicality and expressed his conclusion in the following terms at [57]:
Thus it seems to me that the position arrived at in the High Court may be summarized in the following way:
1. A ‘no evidence’ attack will only suffice as such if it can be said that there is an actual ‘absence of any foundation in fact for the fulfilment of the conditions upon which, in law, the existence of a power depends’, that is, if there is no evidence to support a finding of a jurisdictional fact.
2. Nevertheless, there are constitutional minimum standards of judicial review and the powers of decision-makers such as the Tribunal are not to be exercised capriciously – not ‘according to humour’, but according to law.
3. It is a critical legal requirement that the determination should not be able to be characterized as ‘irrational, illogical and not based on findings or inferences of fact supported by logical grounds’. My own shorthand paraphrase of this is that, in that minimal sense, the determination must be a rational one.
4. If that critical legal requirement is not met, there will be jurisdictional error sufficient to warrant the issue of a constitutional writ.
His Honour went on to conclude in that proceeding at [70]:
In the present case, it would not be fair to label the Tribunal’s entire determination as utterly arbitrary. In the crucial respects mentioned, however, it does nevertheless seem valid to regard the determination of the Tribunal as ‘irrational, illogical and not based on findings as inferences of fact supported by logical grounds’. It is not to the point that on the available material, some other determination to the same effect, based on other factual findings and inferences or on other grounds, might have been made. It therefore seems to me that, on this score also, jurisdictional error has been established. [emphasis in original].
Additionally, the assertion of capriciousness and arbitrariness suggests a form of bias. As the Full Court of the Federal Court said in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] 194 ALR 749 at 756 [46], errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness.
However, a consideration of the Tribunal’s decision indicates that it approached its task logically and reached conclusions which were open to it on the facts. Most significantly, the Tribunal found that the applicant was not credible on several key aspects of his claim, as set out above. Findings of credibility are matters for the Tribunal rather than for this Court. As McHugh J said in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2004) 168 ALR 407 at 423 [67]:
In addition, the prosecutor alleges that the tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor's claim that members of PLOTE tried to recruit him were "utterly implausible". However, this was essentially a finding as to whether the prosecutor should be believed in his claim -- a finding on credibility which is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word "implausible". The disbelief arose from the tribunal's view that it was inherently unlikely that the events had occurred as alleged.
Moreover, in that passage his Honour also explains the nature of the Tribunal’s obligation to give reasons in circumstances where a witness is not believed. But, in this case, the Tribunal has set out several bases for its adverse conclusion on the applicant’s credibility.
Based on his submissions to the Court, it appears that, in reality, the applicant’s complaint is with the Tribunal’s factual findings. As already noted, based on the matters set out in the Tribunal’s decision, its factual findings were open to it. Further, even if the Tribunal had arrived at incorrect conclusions, unless these were of a jurisdictional nature, it is not open to this Court to review them. As was said in Minister for Immigration & Ethnic Affairs v Liang (1996) 185 CLR 259:
In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:
“The duty and jurisdiction of the Court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the Court avoids administrative injustice or error, so be it; but the Court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone”.
(per Brennan CJ, Toohey, McHugh and Gummow JJ at 272.)
The reasons which the Tribunal gave were sufficiently clear to identify the basis upon which it arrived at its conclusion. Moreover, those conclusions were based on a logical analysis which is described in its reasons. The fact that the applicant disagrees with the conclusion and, impliedly, asserts that a different conclusion was appropriate on the facts, is not a basis upon which the Tribunal’s decision can be set aside in proceedings for judicial review such as these.
Consequently, no jurisdictional error has been demonstrated in respect of this asserted ground of review.
Conclusion
As jurisdictional error has not been made out, the application will be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate: Parisra Thongsiri
Date: 5 April 2007
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