SZIWL v Minister for Immigration & Anor
[2006] FMCA 1416
•22 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIWL v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1416 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant is a citizen of the People's Republic of China – applicant claims to fear persecution for reasons of his association with Falun Gong – credibility – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.424A (1) – whether Tribunal failed to comply with Migration Act 1958 s.425 whether Tribunal had breached Migration Act 1958 s.420 by not conducting the hearing in a fair or just manner – merits review – bias – credibility – privative clause – no jurisdictional error. PRACTICE & PROCEDURE – Grounds of review – leave granted to add additional ground – ground stated orally – where applicant not legally represented. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.51A, 357A, 420, 422B, 424A, 425, 474, 476 |
| SZCIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 62 Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61 WALN v Minister for Immigration & multicultural & Indigenous Affairs [2006] FCAFC 131 VACC v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 168 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 SZEPZ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 107 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 |
| Applicant: | SZIWL |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1478 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 21 September 2006 |
| Date of Last Submission: | 21 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 22 September 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Mr Johnson |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $6,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1478 of 2006
| SZIWL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 29th March 2006 after a hearing that took place on 1st March 2006. The Tribunal handed the decision down on 20th April 2006. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The Applicant filed his application in this Court on 23rd May 2006 seeking review of that decision. The Applicant seeks the following orders:
i)A declaration that the decision was invalid and contrary to law.
ii)An order that the decisions and each of them referred to above be quashed or set aside.
iii)An order that the matter be remitted to a differently constituted Refugee Review Tribunal (“the Tribunal”) to be determined in accordance with the law.
iv)An order that the Respondent pay the costs of this application.
v)Such further or other order as this Honourable Court sees fit.
Background
The Applicant is a citizen of the People’s Republic of China.
He arrived in Australia on 31st August 2005 and applied to the Department of Immigration & Multicultural Affairs for a protection (class XA) visa on 14th October 2005. On 29th December 2005 a delegate of the Minister refused to grant the protection visa and on
27th January 2006 the Applicant applied to the Tribunal for review of that decision.
The Applicant stated that he was a primary school teacher from 2002 to August 2005 and had arranged for a student and his father, (Mr Zhang) who was a high profile Falun Gong practitioner, to move into his house.
The Applicant told the Tribunal member that it was his idea to send the Universal Declaration of Human Rights (UDHR) to Falun Gong practitioners and their children who had been persecuted by the Chinese Government.
The Applicant claimed that he had sent some one hundred greeting cards to children from families subjected to persecution because of their link to Falun Gong. The Applicant claimed to have sent the cards to the children in June 2005 for “International Children’s Day”.
The Applicant stated that on 19th July 2005 six police officers searched his home, but did not find anything of interest. The Applicant told the member that he was taken to the Publicity Security Bureau (PSB) as he was suspected of distributing illegal Falun Gong propaganda material.
The Applicant stated that he was detained from 19th to 30th July 2005 and interrogated. He claimed to have been physically and psychologically mistreated. The Applicant claimed that he had been denounced as a criminal who had taken advantage of his position as a teacher to “poison” innocent children. The Applicant said he was regarded as a person wanted by the PSB and would be subject to persecution on return to China.
Tribunal hearing
The Applicant gave oral evidence at the Tribunal hearing on
1st March 2006 with the assistance of a Mandarin interpreter.
He gave evidence that he had decided that he had a duty to tell other students whose parents had been executed because of their involvement with Falun Gong, about the Universal Declaration of Human Rights (UDHR). The Applicant told the Tribunal that he obtained addresses of Falun Gong practitioners From Mr Zhang.
The Applicant stated that he also sent UDHR letters to Government branches and had ensured that he would not receive responses as he had sent the letters anonymously. He said that he had taken steps so that the source of the material was not apparent.
The Applicant told the Tribunal that he had been arrested on
19th July 2005 and was driven to a detention station run by the PSB. The Applicant said that he was made to take his clothes off and they asked him to register and put on a vest bearing the words “Fuqing Detention Station”. The Applicant said to the Tribunal member that he was only detained because of his connection with Mr Zhang.
The Applicant claimed that around 20th August 2005 a student’s parent helped him obtain a passport with a false name. The Applicant claimed that he had provided some photographs to the student’s parent on
27th August 2006. He stated that he had paid 15,000 RMB and was given the passport the day before his departure from China.
Tribunal decision
The Tribunal member accepted that the Applicant is a national of the People’s Republic of China. However, the Tribunal did not accept that the Applicant had obtained the addresses of one hundred Falun Gong practitioners from Mr Zhang or that Mr Zhang could memorise so many addresses accurately.
The Tribunal did not accept that the Applicant had posted copies of the UDHR or other material to Falun Gong practitioners or that the material was ever sent to Government departments. The Tribunal was unable to accept that the Applicant’s house had been raided by police because he had sent the letters.
The Tribunal did not accept that the Applicant left China using a passport in another person’s name because he believed that he would be detained for his political activities if he left China in his own identity. The Tribunal believes that he did this because the passport contained a tourist visa to enter Australia.
Application before the Court
The Applicant’s grounds stated in the application filed on
23rd May 2006 are as follows:
(1)There was an error of law in the Tribunal’s decision constituting a jurisdictional error.
(2)There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
Particulars:
(1)I do not think that, Ms Phillipa McIntosh, the Presiding Member of The Tribunal (“the Presiding Member”), has assessed my claims, fairly or properly; and I strongly believe that the question given by the Presiding member is unfair and my claims as well as my answer have not been treated fairly and properly.
(a)Firstly, the main issue arising from the Presiding Member’s decision is whether or not “…Mr Zhang would have been able to remember even twenty such addresses accurately and that, even if he could, he would have given that information…” to me. The Presiding Member made a finding that “…the latter implausible…” which is apparently incorrect.
(b)The Presiding Member raised above issue and made above finding mainly relied on the information as follows:
(i)The materials (according to my claims, they should be Universal Declaration of Human Rights and my letter in the name of “a teacher from a primary school” which I expressed my strong support to those Falun Gong practitioners and their children) could be obtained from the internet.
”…Evidence from the U.S. State Department that domestic mail is monitored by the PRC authorities…”
(c)The question is that it might be possible to find a copy of Universal Declaration of Human Rights from the internet, but it would be definitely impossible to find my letter from the internet.
(d)
The Presiding Member did not provide me the particulars of the information from the U.S. State Department regarding to the evidence that domestic mail is monitored by the PRC authorities. However, even if it were the case, I would never believe that the authorities were able to strictly monitor all domestic mails for 13 hundred millions people.
Particularly, I sent everything anonymously.
(e)Secondly, I did not think that my evidence, at the Tribunal’s hearing, was vague in the extreme. If it were the case, it would not my fault.
(f)As a matter of fact, during the Tribunal’s hearing, I was in difficulties-:
(i)My opportunity for giving my oral evidence was strictly restricted by the Presiding Member who had conducted me only focusing on her questions; and I was only allowed to answer those questions, simply and directly. I, in fact, did not have any genuine opportunities to give my oral evidences, properly and clearly. My evidence was, actually, forced to be vague and general.
(ii)I had to accept that the Presiding Member indeed discussed some of issues or information with me during the Tribunal’s hearing, but she failed to inform me, clearly and properly, what particulars of information that she would consider to the reason, or part of the reason, for affirming the decision that is under review; and she failed to ensure me to understand why it is relevant to the review; and she failed to invite me to comment on it.
(g)Thirdly, it is obviously unfair that the Presiding Member refused to consider my other claims simply owing to the issues or the information mentioned above.
(2)The Presiding Member failed to comply with her obligation under s.424A(1) of the Act
(a)Guided by the Act, I have found that:-
Section 424A. Applicant must be given certain information
424A. (1) Subject to sub-s. (3), the Tribunal must
(a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or 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
(c) invite the applicant to comment on it.
(b)In my case, the Presiding Member’s decision has mainly relied on the issues or concerns mentioned above. However, from the beginning to the end the Tribunal:-
(i)failed to make me well understand particulars of those issues or information.
(ii)failed to ensure that I understand why those issues or information are relevant to the review; and
(iii)failed to invite me to comment on it.
(3)The Presiding Member failed to comply with this obligation under s. 425(1) of the Act.
(a)Guided by the Act, I have found that:-
Section 425. Tribunal must invite applicant to appear
425. (1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(b)In other words, under the Act, I have two rights – firstly, to give my oral evidence and secondly, to present my arguments.
(c)However, as I have mentioned above, I did not have any genuine opportunity to give my oral evidence in support of my claims; and
(d)I did not have any genuine opportunity to present my arguments against issues arising in relation to the decision under review.
(4)In summary, I have never ever agreed that my application has been assessed by the Tribunal fairly and carefully.
Submissions
The applicant did not file any written outline of submissions.
He sought leave to add a new ground orally, that the Tribunal had breached the provisions of s.420 of the Migration Act. He claimed that the Tribunal had not conducted the hearing in a fair or just manner.
The applicant told the court that the Tribunal had restricted his ability to give oral evidence and that during the hearing he could not say many things that he wanted to say, especially at the end of the hearing.
He complained that the Tribunal member had been pressured by the interpreter to terminate the hearing because the interpreter’s booking time had run out. He thought that he still had not clarified many issues. He said that he told this to the Tribunal member but she replied that in her opinion they had finished what needed to be discussed.
In answer to questions from the bench, the applicant said that he had engaged a migration adviser but his adviser did not attend the hearing. He said his migration adviser could choose either to attend or not to attend. He had not provided a transcript of the Tribunal hearing.
He said that he wanted to submit more evidence but somehow he failed to do so. He said that he discussed the matter with his migration adviser and they decided to wait until they heard from the Tribunal.
The applicant said that the Tribunal had breached s.424A of the Migration Act by not giving him in writing details of the adverse findings it was planning to make and give him the opportunity to comment. He said he had been told that by his migration adviser.
The applicant told the court that s.420 of the Migration Act required the Tribunal to operate in a fair and reasonable way and the Tribunal had not done so in his case. He complained that the Tribunal had rejected his claim purely because the Tribunal member did not believe that
Mr Zhang could possibly have remembered twenty addresses of Falun Gong supporters. The Tribunal member’s questions to him were very vague, which is why his answers were vague.
The applicant claimed that the Tribunal member had a subjective and opinionated attitude. He said that it appeared to be “just a job” to her.
Counsel for the first respondent, Mr Johnson, submitted that the allegations of breach of natural justice are no more than an invitation to merits review. He notes that the Applicant’s protection visa application was made after the commencement of s.422B of the Migration Act[1] and that provision has now been held to exclude the common law natural justice hearing rule: SZCIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 62 per Heerey, Conti and Jacobson JJ at [7] to [8], applying Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61 at [59] to [67] to s. 422B.
[1] On 4th July 2002
The first respondent submitted that the ground alleging breaches by the Tribunal of s.424A of the Migration Act were unparticularised and did not identify any information to which s.424A would attach.
The complaint that the Tribunal did not provide particulars of the information form the United States State Department regarding the claim that domestic mail is monitored by the authorities in China would not suffice, because s.424A does not impose obligations in relation to country information (WALN v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 131 at [27] per Ryan, Tamberlin and Middleton JJ (following VACC v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 168). It is also submitted that it is not apparent that country information was ultimately part of the reasons for the Tribunal’s decision, which is another reason why no s.424A obligation would attach to the information (SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214; [2006] FCAFC 2 per Weinberg J at [164]-[165] and [182] and Allsop J at [215]-[216] and [227]. Counsel for the first respondent also referred to SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 at [40], where Emmett, Siopis and Rares JJ explain that s.424A “in so far as (it) refers to a state of mind or mental process”, “must be taken to refer to the state of mind or mental process of the particular member constituting the Tribunal for the purposes of the review”.
Mr Johnson also submitted that, as to the alleged breach of s.425 in that the applicant was not given the opportunity to say what he wanted to say, there is no transcript in evidence and these complaints cannot be established without a transcript (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21]).
He also submitted that it is not unknown for applicants to be inappropriately focused in what they put forward and the Tribunal must, to some extent, be entitled to control or direct an applicant’s evidence away from irrelevant material. The application did not reveal any matter that the applicant was not able to put forward.
Mr Johnson also submitted that whilst failure to consider a claim may be jurisdictional error (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [56]-[63] and [68], that did not appear to have occurred in this case.
In his oral submissions in reply to the applicant’s fresh ground, that of breach of s.420 of the Migration Act, Mr Johnson drew the court’s attention to Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 where the High court said that s.420 was an exhortative section and not one where a breach would result in jurisdictional error.
He went on to submit that the Tribunal did put to the applicant the substance of the matters about which it had reservations. As to the applicant’s claim that the hearing was prematurely terminated before he had a chance to put all that he wanted to put, Mr Johnson submitted that it was open to the applicant to have made a written submission to the Tribunal, presumably with the assistance of his migration agent.
He drew the court’s attention to the passage at page 107 of the Court Book where the Tribunal told the applicant that if he wished to add anything more he should do so “by the close of business on
3rd February 2006”.[2] In any event, the RRT Hearing Record at page 80 of the Court Book shows that the hearing commenced at 11.50 am and concluded at 3.15 pm, which indicates a reasonable length of time.
[2] Presumably the Tribunal meant 3rd March 2006, as the hearing was held on 1st March 2006.
The applicant said in reply that he wished he had submitted a transcript of the hearing but he could not have afforded the translation. He said that it was wrong that the Tribunal could dismiss his application just because it did not accept his evidence about sending letters. In China everyone knows that some mail is sent by Falun Gong practitioners, even if the authorities monitor the mail.
He said that the interpreter was pushing the Tribunal to bring the hearing to an end. The Tribunal member made a phone call but said that there was no other interpreter available.
Conclusions
I will deal with the grounds of the application in order.
In Ground 1, the applicant claims that the Tribunal did not deal with his case “fairly and properly”. In so far as the applicant claims bias on the part of the Tribunal member, I am satisfied that there is no evidence of any bias, whether apprehended or actual. As the Full Court of the Federal Court has made clear in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [43], an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. It is not to be lightly made and must be clearly alleged and proved (see also SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358). Nothing in the Tribunal decision demonstrates any evidence of bias or bad faith.
It is clear from the Tribunal’s findings and reasons that the Tribunal was not satisfied as to the credibility of the applicant’s evidence. Credibility is a factual matter and, as long as there is evidence capable of supporting the conclusion, remains entirely a matter for the Tribunal. The Tribunal did not believe the applicant.
As to the applicant’s claim in 1 (d) that the Tribunal did not provide him with particulars from the United States State Department regarding monitoring of domestic mail by the authorities, I note that the Tribunal put that material to the applicant for his comments at page 106 of the Court Book. The Tribunal notes:
He responded that he agreed there was no freedom of correspondence, but he did not think that sending them this material had caused them any problems.
Overall, it appears clear that the contents of Ground 1 consist mainly of the applicant’s challenge to the Tribunal’s factual findings, especially as to credibility. Merits review is not available in proceedings for judicial review.
Ground 2 claims a breach by the Tribunal of s.424A (1) of the Migration Act. This ground is misconceived. The only information referred to in the Tribunal’s findings and reasons is the report from the US Department of State. Country information, being information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member is covered by the exclusion in s.424A (3)(a).
There is no other information in the findings and reasons that can be said to be the reason, or part of the reason, for affirming the decision under review except the applicant’s own evidence. Information that the application gave for the purpose of the application is covered by the exclusion in s.424A (3) (b). The Tribunal’s determinations, conclusions or thought processes are not “information” for the purpose of s.424A.
The applicant appeared to be under the belief, apparently obtained from his migration agent, that if the Tribunal decides to affirm the delegate’s decision, then s.424A requires the Tribunal to write to an applicant to give him or her a chance to argue against that decision. There is no such right and this view of s.424A is entirely misconceived.
There is no breach of s.424A (1) of the Migration Act. This ground fails.
The applicant’s Ground 3 claims a breach of s.425 in that the applicant says he was not given a chance to give oral evidence, or at least as much oral evidence as he says he wished to give, in support of his claims. The applicant has provided no evidence that the hearing was truncated or he was in any prevented from giving his evidence (see NAOA (supra at [21]). In any event, the Tribunal gave the applicant the chance to make a further submission:
I told him that if he wished to add anything more to the information he had given the Tribunal, he should do so by the close of business on 3rd February 2006. He agreed to do so and the hearing ended.[3]
[3] Court Book at 107
The applicant in any event was not restricted to a 48 hour time limit for submitting more information. He had a migration agent and he told the court he discussed the matter with her. The decision was not signed until 29th March and not handed down until 20th April 2006. There was ample time for the applicant’s migration agent to make a further submission to the Tribunal. The applicant chose not to do so.
The applicant appears to believe that the right under s.425 (1) to present arguments relating to the issues arising in relating to the decision under review is a right of reply against the Tribunal’s findings:
d. I did not have any genuine opportunity to present my arguments against[4] the issues arising[5] in relation to the decision under review.
[4] emphasis added
[5] Spelling error corrected
This is a misconception. Section 425 does not contain any right of reply to the Tribunal’s decision.
There is no breach of s.425 of the Migration Act. This ground fails.
The applicant in Ground 4 states that he does not agree that the Tribunal assessed his application “fairly and carefully”. If this is a claim of actual or apprehended bias it fails for lack of evidence, as set out in [32] above.
If it is an oblique reference to the applicant’s new ground of a breach of s.420, it must also fail for the reasons set out by counsel for the first respondent. If the applicant is claiming that s.420 preserves the notion of common law procedural fairness, then this ground falls foul of the provisions of s.422B. The Full Court of the Federal Court has made it clear in SZCIJ v Minister for Immigration & Multicultural & Indigenous Affairs that s. 422B excludes the common law natural justice hearing rule. After noting that the Federal Magistrate hearing the case at first instance had held that s.422B excluded the common law natural hearing rule, the Court held at [7]-[8]:
In another decision handed down today, Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61, we have dealt with the same point in relation to
s. 51A of the Act, which is the equivalent of s. 422B in relation to visa applications at Departmental level (see also s. 357A in relation to reviews by the Migration Review Tribunal).
For the reasons given in Lay Lat at [59]-[61] we hold that the common law natural justice hearing rule did not apply. The appeal will be dismissed with costs.
This ground fails. There is no jurisdictional error.
I have read through the decision independently, mindful of the fact that the Applicant is not legally represented. I have independently considered whether an arguable case can be made out on the material (see Yo Han Chung v University of Sydney [2002] FCA 186 at [31]-[34]. I am unable to discern any other grounds for arguing that there may have been a jurisdictional error.
There is no reviewable error. The Tribunal’s decision is a privative clause decision as defined in s.474 of the Migration Act and as such it is not subject to prohibition, mandamus, injunction, declaration or certiorari (s.474(1)(c)).
The application must be dismissed. I will hear submissions on costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 22 September 2006
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