SZIYB v Minister for Immigration

Case •

[2006] FMCA 1608

•

11 October 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIYB v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1608
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of RRT affirming decision of a delegate of the Minister not to grant a protection visa to the applicant – applicant is a citizen of the People's Republic of China – applicant claims fear of persecution for reasons of his activities in a union – credibility – no jurisdictional error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.422B, 424A, 474
Minster for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61
Re: Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407
Re: Minister for Immigration & Multicultural Affairs & Anor; ex parte MIAH (2001)
SZCIJ v Minister for Immigration & Multicultural Affairs & [2006] FCAFC 62
SZAGF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) ALD 364
Applicant: SZIYB
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1672 of 2006
Judgment of: Scarlett FM
Hearing date: 11 October 2006
Date of Last Submission: 11 October 2006
Delivered at: Sydney
Delivered on: 11 October 2006

REPRESENTATION

The Applicant: Appeared in person
Solicitors for the Respondents: Phillips Fox

ORDERS

  1. The application is dismissed.

  2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1672 of 2006

SZIYB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal.  The decision was made on 21st April and handed down on 11th May 2006.  The Tribunal affirmed the decision of a delegate of the minister not to grant the applicant a protection (class XA) visa. 


    The applicant is a citizen of the People's Republic of China.  He arrived in Australia on 24th September 2005, although he was using a passport in the name of another person.  He applied for a protection (class XA) visa on 8th November 2005, but his application was refused on


    6th February 2006.  He then, on 7th March 2006, applied to the Refugee Review Tribunal for a review of that decision.

  2. The application was lodged by his migration agent.  There was no additional information lodged at the time.  The Tribunal wrote to the applicant on 16th March inviting him to attend a hearing to take place at 9 am on Friday, 21st April, 2006.  The applicant attended the hearing and gave oral evidence with the assistance of a Mandarin interpreter.

  3. He told the Tribunal that he was a watch repairer by occupation and set up a watch repair business next to a coal mine.  As a result of his proximity to the coal mine, he came to know a lot of the workers and, as a result of an explosion that took place in the coal mine, became very active on their behalf.  He, in fact, claimed that he became involved with a trade union and was very active on behalf of the mine workers.  As a result, he claimed that he attracted the adverse attention of the Public Security Bureau, the PSB.  He said that he, in fact escaped from the area where he had been working and, fearing adverse attention from the PSB, obtained a passport with an Australian visa and travelled to Australia.

  4. The Tribunal asked the applicant a number of questions about his evidence, and, in fact, put to him some concerns that the Tribunal member had.  The Tribunal handed down its decision on 11th May, and the findings and reasons are set out on pages 73 to 74 of the court book.  Whilst the Tribunal found that the applicant was a national of the People's Republic of China, the Tribunal took an adverse view about the applicant's oral evidence.

  5. At page 73 of the court book, the Tribunal said about the applicant: 

    He gave his oral evidence in a hesitant manner, and his responses to certain questions were vague or non‑committal.

  6. The Tribunal went on to describe the applicant's evidence as "internally inconsistent", and criticised the applicant's ability to provide specific evidence of what he claimed to be the safety problems involving the mine and the practical changes that the mine workers union was seeking on behalf of its members.

  7. The Tribunal found that the vagueness of the applicant's evidence about the times when certain things happened was not consistent with the applicant's claim to have been the leader of the mine workers union.  The Tribunal went on to refer to the "general implausibility" in the applicant's claim, and went on to say: 

    For these reasons, I consider the claim highly implausible and do not accept that the applicant has been involved in any union activity or any activity which is regarded as anti‑government within China.  Therefore, I do not accept that he was or is being sought by the PRC authorities because of the political opinion imputed to him or that he left China for the reasons he has claimed.  The chance is remote in the extreme that he might face any serious harm in China for the reason of political opinion.

  8. The Tribunal found that the applicant did not have a well‑founded fear of convention‑related persecution in China, and, therefore, was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Accordingly, the Tribunal found that the applicant did not satisfy the criterion set out in sub‑s.36(2) of the Migration Act for a protection visa.

  9. The applicant commenced proceedings in this Court for a review of that decision by means of an application and affidavit filed on


    13th June 2006.  He filed an amended application on 24th August 2006, and, today, the day of the hearing, sought leave to rely on an amended application, which I have entitled a further amended application to distinguish it from the amended application of 24th August.

  10. The solicitor for the first respondent, the minister, did not object to my granting leave, and, accordingly, I have given leave for the further amended application to be filed in Court.  In that further amended application, the applicant seeks orders setting aside the decision of the Tribunal and remitting the matter to the Tribunal for determination according to law.  The amended application sets out two grounds. 


    The first ground alleges that the Tribunal acted in breach of s. 424A of the Migration Act and in breach of the rules of procedural fairness and/or natural justice by failing to put adequately to the applicant for comment independent country information on which it impliedly relied in making its determination. As a consequence, it is claimed that the decision is affected by jurisdictional error.

  11. The particulars of this claim are that the applicant submits that it is apparent from the Tribunal's decision that it relied upon or had regard to independent country information regarding the political situation in China generally, the Public Security Bureau in China and the union movement in China.  However, the Tribunal did not explicitly identify or refer to any such independent country information in its decision and did not provide copies of any such information to the applicant.  It also failed to put such information to the applicant or provide a proper opportunity for the applicant to respond to that information.  That, it is submitted, constitutes a jurisdictional error.

  12. The amended application goes on to say that the applicant relies on the decision of SZAGF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 82 ALD 364 and on the decision of


    Re: Minister for Immigration & Multicultural Affairs & Anor; ex parte MIAH

    (2001) 206 CLR 57, to the effect that the presence of a provision such as s. 424A does not of itself preclude the continued existence of the common‑law requirements of natural justice.

  13. The short answer is that this ground is misconceived.  First of all, there is a claim that the Tribunal relied upon independent country information and did not put that information to the applicant. 


    The provisions of s.424A(3)(a) of the Migration Act say that the section does not apply to information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or another person is a member. More importantly in this case, there is no evidence that the Tribunal relied on any independent country information. There is nothing in any part of the Tribunal's decision that refers to independent country information.


    To claim that the Tribunal must have referred to some unspecified independent country information in making a decision when there is no evidence of it whatsoever is fanciful in the extreme.

  14. There is no evidence that the Tribunal relied upon any information other than the applicant's oral evidence to the Tribunal, and that evidence to the Tribunal comes under the exception set out in s.424A(3(b) of the Migration Act, as it is information that the applicant gave for the purpose of the application.

  15. The amended application also refers to cases in support of the claim that the presence of a provision such as s.424A does not of itself preclude the continued existence of the common‑law requirements of natural justice. The short answer to that is that the presence of s.422B of the Migration Act does exactly that. This is an application that was commenced after s.422B of the Migration Act came into force on


    4th July 2002. Section 422B(1) says:

    This subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

  16. It has been made quite clear by the Full Court of the Federal Court in SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62 at [6] to [8] that s.422B of the Migration Act excludes the common‑law natural justice hearing rule. Their Honours went on to say at [7]:

    7.  In another decision handed down today, the Minister for Immigration & Multicultural & 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.

    8.  For the reasons given in Lay Lat at [59] to [67] we hold that the common‑law natural justice hearing rule did not apply.

  17. There is no space for the operation of the common‑law natural justice hearing rule in respect of this matter. There is no breach of s.424A. There is, therefore, no jurisdictional error so far as this claim is concerned.

  18. The second ground claims that the Tribunal failed to explain sufficiently to the applicant its view that there were inconsistencies in his evidence and failed to give him a proper opportunity to explain any such inconsistencies.  The conclusion that the applicant's evidence was vague and unreliable was central to the Tribunal's ultimate decision that the applicant was not a refugee.  The amended application submits that the Tribunal's decision was affected by jurisdictional error.

  19. It is submitted that the Tribunal failed to put fully to the applicant its view that the inconsistencies in his evidence amounted to his central claim being implausible, and, as a consequence, the Tribunal made findings adverse to the applicant as to the reliability of his oral evidence and his credibility.  This ground, similarly, is misconceived.  The Tribunal was under no obligation to put to the applicant it's thought processes.  The applicant had given oral evidence to the Tribunal, and the Tribunal was not of the view that the applicant's oral evidence was reliable.  The Tribunal formed an adverse view of the reliability of the applicant's evidence in respect of the key features of his claim.

  20. Credibility findings are solely the province of the administrative decision maker.  Credibility findings are, in fact, findings as to fact, and provided that there is sufficient evidence upon which such a finding can be made, they are the Court exercising the function of judicial review well not interfere.  It has been made quite clear in


    Re: Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham

    (2000) 168 ALR 407 per McHugh J at [67] that, whilst the Tribunal must set out its reasons, it need not set out the subset of its reasons in arriving at a finding that an applicant's evidence is implausible.

  21. In my view, it was open to the Tribunal on the evidence before it from the applicant who was there giving evidence not to be persuaded that the applicant's evidence was reliable.  As such, no jurisdictional error has been made out.

  22. The applicant also made other claims in his submissions.  He claimed that the Tribunal's decision was unfair.  When asked why the Tribunal's decision was unfair, the applicant said that he had told the truth and the Tribunal did not believe him.  That is not a ground for finding that any unfairness existed.

  23. The applicant claimed that the Tribunal ignored the details that he provided in support of his claim.  The Tribunal decision does not support that claim.  It certainly appears that the Tribunal can list in some detail the substance of the applicant's claim, but was not convinced by the applicant's evidence on the day.

  24. The applicant also claims that in some way the hearing miscarried and that he was not able to exercise his rights to give oral evidence and make submissions in support of his case.  He said that the Tribunal should have understood that he was under a considerable amount of pressure because he was speaking of events that had been quite difficult for him.  The Tribunal was not given any indication by the applicant that he was under any pressure or suffered from any nervousness.

  25. The applicant claimed that the Tribunal may have misunderstood what he had to say.  The applicant did give evidence with the assistance of an interpreter, and there is no evidence that the interpretation by the interpreter was in any way inadequate.  The Tribunal should have known that the applicant was nervous, he told the Court, and the interpreter should have realised because the applicant stammered when he was giving his evidence.  It is not surprising that an applicant before the Refugee Review Tribunal would be nervous in giving evidence.  That is perfectly understandable.  There is no evidence that the applicant told the Tribunal that he was suffering from any particular difficulties, and there is no evidence that the applicant was not able to give evidence adequately.

  26. The applicant also claimed that the Tribunal did not rely on independent country information about the situation in China relating to human rights. He referred somewhat vaguely to an American report and, when prompted from the Bench as to whether it might have been a report on human rights from the United States Department of State said that he believed that was so. The Tribunal did not rely on any independent country information, and the applicant did not provide the Tribunal with any reports from the United States Department of State or from any other body. It is not incumbent on the Tribunal under s. 424 of the Migration Act, which empowers the Tribunal to seek additional information, to make inquiries in support of the applicant's own case. There is no obligation on the Tribunal to do so.


    The applicant did not provide any country information to the tribunal, and, in my view, the Tribunal was not obliged to go and find its own information in support of the applicant's case.

  27. The applicant also claimed that he had been misled by the Tribunal into believing that his application would be successful, and, as a result, lost the opportunity to provide additional information in support of his claim.  When asked from the Bench as to what gave him the impression that the Tribunal would grant his application, the applicant was unable to reply.  All that he said was that the Tribunal had misunderstood him by ignoring details in his evidence.  He said that he was so scared he could not explain clearly.  He did not tell that to the Tribunal.

  28. When asked from the Bench as to when he realised that the Tribunal was not going to grant his application, the applicant was only able to say that he forgot.  Later, when asked when he thought the Tribunal was going to grant his application, he said that at the time of the hearing he thought that the Tribunal was going to accept his claim.

  29. I note that at pages 72 and 73 of the court book the Tribunal sets out examples of questions asked of the applicant, which indicate that the Tribunal was, to say the least, sceptical of his claims.  At page 72, the Tribunal says: 

    I put to him that it was difficult to believe that the guard would risk doing this given that he would have been punished by the PSB for it.  The applicant responded that he was a good friend.

  30. Page 73 in the first paragraph the Tribunal said: 

    I told him I found it difficult to see why coal miners might choose a watch repairer with no experience of mining to head their union.  He responded that it was the Fujian union, the miners trusted him.

  31. Further, in the second paragraph on page 73 the Tribunal said: 

    I told him that I had found his evidence vague and was finding it difficult to believe that he had set up a union.  He responded that he was being truthful.

  32. The applicant denied any recollect of any of those statements.  I did not cross‑examine him on that point nor seek sworn or affirmed evidence from him.  I am, however, of the view that the Tribunal's decision contains examples of questions by the Tribunal to the applicant which indicate a considerable degree of scepticism about the applicant's story.  In the light of those questions, it would be difficult to see how an applicant could be under a mistaken belief that his application was going to be successful.

  33. The applicant, when asked if there was anything further he wished to submit, said that he had a lot to say.  He said that he wished to stay in Australia, his evidence was not false, he was very scared when he was at the Tribunal, he cannot return to China.

  34. I am not of the view that the applicant has made out any jurisdictional error on behalf of the Tribunal. There is no breach of s.424A.


    There is no common‑law procedural unfairness. There is no failure to make an inquiry under s.424, nor was there any use of independent country information, whether or not that would attract criticism of the Tribunal. There is no evidence that the Tribunal was in any way aware that the applicant was under any difficulty or hindrance in giving his evidence, if, indeed, he was.

  35. In all of the circumstances, whilst I'm mindful of the fact that the applicant, notwithstanding the fact that his further amended application purports to have been prepared by a solicitor, was unrepresented at the hearing.  I have considered the Tribunal decision independently in order to ascertain whether any other sign of jurisdictional error may have been made out.  I am unable to discern any jurisdictional error.

  36. As a result, I'm satisfied that the Tribunal decision is a privative clause decision as defined by sub s.474(2) of the Migration Act. A privative clause decision is final and conclusive, and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any Court on any account. The application will be dismissed.

  37. There is an application for costs.  The applicant has been wholly unsuccessful in his claim.  In my view, there is no reason to depart from the usual rule that costs follow the event.  In propose to make an order that applicant should pay the first respondent's costs. 


    Having decided that it is appropriate to make a costs order, I now consider the question of quantum.  The amount sought is $3,400.00,


    in my view this is well within the range that the Court would award for a matter of this nature.  I consider it an appropriate figure.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  24 October 2006

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0