SZIYO v Minister for Immigration - [2007] FMCA 782

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIYO v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 782

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 422B, 424A , 425, 430(1)(b), 476
Federal Magistrates Court Rules 2001 (Cth), rr.44.11, 44.12

Minister for Immigration v Lay Lat [2006] FCAFC 61
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
NAHI v Minister for Immigration [2004] FCAFC 10
NAOA v Minister for Immigration [2004] FCAFC 241
SZBEL v Minister for Immigration [2007] HCA 62
SZCIJ v Minister for Immigration [2006] FCAFC 62
VHAP of 2002 v Minister for Immigration [2004] FCAFC 82
WAEE v Minister for Immigration (2003) 75 ALD 630

Applicant:

SZIYO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG1742 of 2006

Judgment of:

Lloyd-Jones FM

Hearing date:

27 April 2007

Delivered at:

Sydney

Delivered on:

24 May 2007

REPRESENTATION

Advocate for the Applicant:

Applicant appeared in person with the assistance of a Mandarin interpreter

Counsel for the Respondents:

Mr S Free

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 20 June 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1742 of 2006

SZIYO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 20 June 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 4 May 2006, affirming a decision of the delegate of the first respondent made on 7 February 2006, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks unstated relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZIYO”.
The applicant seeks an order that the first respondent show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Act. Pursuant to r.44.11(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”), I dispensed with a hearing under r.44.12 and set the matter down for final hearing.
A Court Book ("CB") prepared by the first respondent’s solicitors was filed on 11 August 2006. I have marked it Exhibit "A" and it was read into evidence.

Background

The Tribunal decision of C Long, reference N0653250, provides the following background information:
The applicant, who is a citizen of The People’s Republic of China, arrived in Australia on 30 October 2005 and applied to the Department of Immigration and Multicultural Affairs for a Protection (Class XA) visa on 14 December 2005. The delegate decided to refuse to grant the visa and notified the applicant of the decision and her review rights by letter dated 7 February 2006. The applicant applied to the Tribunal on 7 March 2006 for review of the delegate’s decision.(CB 103)
In her application for protection visa the applicant states she was born in Fujian in China in 1967. She states that she is Christian and was married in Fujian in 1987. She indicates that her husband and son (born in 1990) reside in China as do her mother and father. The applicant indicates that she travelled to Australia using a passport issued in her name in Fujian in December 2003; her visa was issued in Guangzhou in September 2005. She states that she left her country legally and did not have any difficulties obtaining her travel documents. The applicant states that before she came to Australia she was a business woman. She states that she worked in a company which she names from 1991 to October 2005 and piror to that time she was self employed from 1987 until January 1991. She indicates that she lived in Nanping City, Fujian at the same address from January 2002 until October 2005 and at a different address in the same city from December 1995 until January 2002.(CB 105)

Applicant’s claims

The Tribunal set out the basis of the applicant’s claims as follows:
Essentially the applicant claims that she left China and cannot return there because she was persecuted and fears further persecution there. She claims this is because of her religious beliefs and activities with/support of an underground church which was regarded as an illegal religious organisation and also because she opposed the government due to its treatment of her father in law and other farmers. She claims that in China she and her husband are regarded as “anti-government”.(CB 109)

Tribunal’s findings and reasons

A summary of the Tribunal's reasons was contained in the first respondents’ written submissions prepared by Mr Free and I adopt paragraph 3 of those submissions:
3.With the exception of the applicant’s claims that her father in law had been charged with and convicted of certain offences, the RRT did not accept the applicant’s claims and found that the applicant was not a witness of truth. The RRT’s reasons for these findings about the applicant’s credibility can be summarised as follows:
a.The RRT did not consider that the fact that the applicant delayed 45 days after coming to Australia to make her application for protection was consistent with the applicant’s claims.
b.The RRT did not consider that it was consistent with the applicant’s claims that she was having serious trouble from the PRC authorities from at least May 2004 that the applicant managed to live at her usual address in China from 2001 with her family and successfully ran a business until just prior to coming to Australia at the end of October 2005;
c.The RRT did not accept as reasonable the applicant’s explanation for this second perceived inconsistency that she was having trouble from authorities in another place, and found that this explanation was itself inconsistent with the applicant’s claim that the authorities had come to her house in Nanping City to look for her in November 2005;
d.The RRT did not consider that the fact that the applicant had delayed leaving China until the end of October 2005, although she was in possession of a valid passport issued in 2003 and a visa for Australia granted on 29 September 2005, was consistent with her claims. The Tribunal did not accept as reasonable the applicant’s explanation for this delay (being that the applicant’s mother was sick), given the seriousness of the applicant’s claims about her situation in China.

Application for review of the Tribunal’s decision

On 20 June 2006, the applicant filed an application for review in this Court under s.39B of the Judiciary Act. At the first Court date of 26 July 2006, the applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon by 26 September 2006. The applicant filed an amended application on 22 September 2006. On 18 October 2006, she filed a further amended application prepared by a solicitor which contained a new set of grounds of review. At the commencement of the hearing, the applicant was asked whether the amended application was abandoned in favour of the further amended application. She was unable to respond to the question, and I ruled that the further amended application filed on 18 October 2006 would be the relevant document considered by the Court. The grounds of review are as follows:
1.The Tribunal acted in breach of section 424A of the Migration Act 1958 and in breach of the rules of procedural fairness and/or natural justice by failing to put to the Applicant for comment the independent country information on which it impliedly relied in making its determination. As a consequence the decision is affected by jurisdictional error.
By way of particulars the Applicant submits it is apparent from the Tribunal decision at page 9 (‘Findings and Reasons’) that it relied upon or had regard to independent country information regarding the general political situation in China, the operation of the Christian (and specifically Presbyterian church) in China, and the modus operandi of the police/PSB in China. The Tribunal did not explicitly refer to such independent country information in its decision and did not provide copies of such information to the Applicant. It therefore failed to put such information to the Applicant or to provide a proper opportunity for the Applicant to respond to that information. As a consequence the Tribunal fell into jurisdictional error.
In support of this submission the Applicant relics generally on the decision of SZAGF v MIMIA (2004) 82 ALD 364 and on the decision of Re Minister for Immigration and Multicultural Affairs and Another; 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.
2. The Tribunal acted in breach of the rules of procedural fairness and/or natural justice by failing to put to the Applicant for comment its view that almost all the Applicant’s claims were not credible and had been ‘invented...to assist her application for a protection visa’.
By way of particulars it is apparent from the Tribunal’s comments at page 9 (‘Findings and Reasons’) that it did not accept the substance of the Applicant’s claims of persecution on the basis of her religion, her political opinion or any other Convention ground because it ‘did not accept her as a witness of truth’. The Tribunal made findings adverse to the Applicant as to the reliability of her oral evidence and her credibility. These findings are central to the Tribunal’s conclusion that the Applicant is not a refugee. The Tribunal therefore had an obligation to put these findings to the Applicant and give her an opportunity to respond and comment. The Tribunal’s failure in this regard has led to its decision being affected by jurisdictional error.
3.The Tribunal has failed entirely to explain its reasons for not accepting any of the matters referred to in the first paragraph of page 9 (‘Findings and Reasons’), but for the Applicant’s claim regarding her father-in-law’s detention. The Tribunal has simply listed all the matters/claims it does not accept, and then purports to base its non-acceptance on the finding that the Applicant was not a witness of truth’. The Applicant submits that this reasoning is circular and fails to identify any specific inconsistencies or issues of concern to the Tribunal. It is submitted that the tribunal has failed in its statutory obligation pursuant to section 430(1) and its common law obligation to provide adequate reasons for its decision and to refer to the specific evidence for its findings of fact. As a consequence the decision is affected by jurisdictional error.
In support of this submission the Applicant relies generally on the decision of the Full Federal Court in WAEE V MIMIA [2003] FCAFC 184, 15 August 2003; and the decision of Mansfield J in Singh v MIMA, Federal Court of Australia, S5 of 1999, unreported, BC9905715.
4. The Tribunal’s adverse finding of unreasonable delay because the Applicant did not leave China until the end of October 2005 after being issued a visitor visa for Australia on 29 September 2005 is unreasonable and has no foundation.

Submissions and reasons

The applicant appeared as a self-represented litigant with the aid of a Mandarin interpreter. The applicant indicated that she had not filed any written submissions in these proceedings, but wished to make oral submissions in support of her application. She identified the following three reasons for the rejection of her application:
a)The 45 day delay between the time of her arrival in Australia and her application for a protection visa;
b)that she had lived at the same address in China since 2001 until she had departed for Australia in late October 2005. She had lived with her family and conducted a successful business during that time; and
c)although she had in her possession a valid passport issued in 2003 and a visa to enter Australia issued on 29 September 2005, she had not departed China until late October 2005.
The applicant explained that the delay in her applying for a protection visa was because she was in a foreign country and unable to speak the language. She did not know how to seek a protection visa. In respect of the second issue at [9] above, the applicant indicated that after the Public Security Bureau (PSB) arrested her father-in-law, both her father and father-in-law encouraged the applicant to leave China for her own safety. In respect of the third issue at [9] above, the applicant explained that her mother had been ill and she was responsible for caring for her during this period.
The applicant said that she understood that the function of the Court was limited and that it could only review legal errors. However, she maintained that the Tribunal made a completely wrong decision based on wrong information. The applicant then made brief submissions regarding the operation of s.424A of the Act.
Mr Free initially responded to the issues raised by the applicant in her oral submissions, which were slightly different to those contained in the further amended application.
In response to the allegation that the Tribunal failed to provide the applicant with information about the three reasons for rejecting her application, Mr Free argued that that information was provided by her to the Tribunal during its hearing of 18 April 2006. Consequently, this came within the exemption in s.424A(3)(b).
The first issue raised by the applicant was her delay in making the visa application. Mr Free referred to the following passage of the Tribunal decision:
The Tribunal asked the applicant when she made her application for protection after her arrival in Australia. She said that she made it about 45 days after her arrival here. The Tribunal asked her why she delayed for that time if she came to Australia specifically to seek protection. The applicant said that she did not know what to do and had to enquire about making the application.(CB 107.4)
The second issue relates to her situation prior to departing China and Mr Free refers to the following Tribunal decision passage:
The applicant said that just before she came to Australia she was living in Nanping City and she has always lived there, “since 1987”. She said that she was living at the same address in Nanping City since 2001 and before that she lived at a different address in that city.(CB 107.5)
In respect of the third issue, relating to the applicant’s passport and Australian visa, Mr Free referred the Court to the following passages from the Tribunal decision:
The applicant produced her current passport to the Tribunal and stated that she had travelled to Australia using the passport that she produced.(CB 106.3)
The Tribunal noted from the applicant’s passport that she produced to the Tribunal at the hearing that the applicant’s visa for travel to Australia was granted in China on 29 September 2005. It asked the applicant whether she had any difficulty obtaining her travel documents. The applicant said that she obtained her passport a long time ago because both her parents in law were applying for passports and “we wanted to travel overseas”. Her visa had nothing to do with the local authorities; she just gave her passport to the agent to get her visa. The Tribunal asked the applicant why she had not left her country earlier given that she had been detained by authorities in May 2005 and already had her passport. The applicant explained that she hesitated leaving China because her mother was sick. The applicant said that she decided not to return to China at the end of October 2005; when she left it was her intention to escape and not go back to China. She confirmed that she had no difficulties leaving her country and used the visitor visa for Australia.(CB 108.2)
Mr Free submits that the three separate pieces of information identified by the applicant are subject to s.424A as they were information she provided to the Tribunal during the hearing and, consequently, fell within the exemption in s.424A(3)(b).
I agree with the arguments submitted by Mr Free in response to the oral submissions made by the applicant that no new ground of review identified can be sustained.
Mr Free submits that the first ground of the further amended application, that the Tribunal breached s.424A by failing to put to the applicant for comment independent country information, is factually and legally misconceived. He submits that there is nothing in the Tribunal’s reasons to indicate that it relied upon any independent country information as “the reason or part of the reason” for affirming the delegate’s decision. In any event, s.424A 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 other person is a member”: s.424A(3)(a). Even if the Tribunal had in this case relied upon independent country information, there would be no obligation under s.424A to give the applicant written notice of that information. The reference in s.424A(3)(a) above is not an additional criterion to be met in order for the subsection to apply: VHAP of 2002 v Minister for Immigration [2004] FCAFC 82 at [14].
Mr Free submits that to the extent that the applicant relies on unspecified concepts of natural justice apparently sourced from the common law, that ground is misconceived. The application for review to the Tribunal was made after the introduction of s.422B of the Act. That section provides that Division 4 of Part 7 of the Act exhaustively sets out the requirements of the natural justice hearing rule in relation to matters dealt with in that Division. It is submitted that one cannot establish that the Tribunal breached requirements of procedural fairness (in respect of the hearing rule) by reference to extraneous principles derived from the common law: SZCIJ v Minister for Immigration [2006] FCAFC 62; Minister for Immigration v Lay Lat [2006] FCAFC 61. It is submitted that for an applicant to succeed in establishing a breach of natural justice hearing rule, this must be done by establishing a breach of one of the statutory requirements in Division 4 of Part 7.
Mr Free submits that, in this matter, even if there was a factual basis to the contention that the Tribunal failed to put the applicant on notice of its intention to rely on particular independent country information, there is no applicable statutory obligation under Division 4 of Part 7 requiring the Tribunal to give such notice. I agree with the submissions made by Mr Free that ground one of the further amended application cannot be sustained.
The second ground alleges that the Tribunal failed to put the applicant on notice of its view as to her credibility. Mr Free submits that no applicable statutory obligations were breached.Further, that no error of the kind identified in SZBEL v Minister for Immigration [2007] HCA 62 arises on the facts of the present case to the extent that that case is relevant to the Tribunal’s obligation under s.425 of the Act.

SZBEL at [47] states:
It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events.
It is submitted that this Tribunal decision indicates that the applicant was effectively put on notice, from the discussion at its hearing, that the following were not in issue:
a)The 45 day delay in lodging her protection application (CB 107.4);
b)Her delay in leaving China, despite having her passport and visa for some considerable time (CB 108.4);
c)That she remained at the same address in Nanping and operated a business, despite having had trouble from the authorities in China since May 2004.(CB 108.6)
Accordingly, even if the applicant had a proper legal basis for arguing that the Tribunal was obliged to put her on notice, the factual contention is inconsistent with the indications in the Tribunal’s reasons for decision as to what occurred at the hearing.
Mr Free submits that to the extent that the applicant is contending that the Tribunal was obliged to put her on notice of its thought process regarding the issues identified above, that argument must fail as the Tribunal is under no such obligation: SZBEL at [48]. It is submitted that in the absence of a transcript, it cannot be inferred that the applicant was not made aware of the issues which arose in relation to her application: NAOA v Minister for Immigration [2004] FCAFC 241 at [21]. I accept Mr Free’s submissions and agree that this ground of review cannot be sustained.
The third ground states that the Tribunal committed jurisdictional error by failing to provide reasons, which Mr Free contends is a misreading of the Tribunal decision. It is submitted that the Tribunal is under a statutory obligation to set out its reasons for decision: s.430(1)(b) of the Act. When read as a whole, it is clear from the Tribunal decision that the Tribunal complied with its obligations under s.430(1)(b). The further amended application focuses unreasonably on a single paragraph in which the Tribunal listed the various claims of the applicant which it did not accept. That paragraph also states that the reason why the Tribunal did not accept those claims was because it “does not accept that [the applicant] is a witness of truth”: CB 110.5. Mr Free argues that that paragraph cannot be read in isolation. The paragraph immediately following plainly described the Tribunal’s reasons for its conclusion: CB 110.6. The Tribunal found the applicant’s claims to be inconsistent with other considerations, as set out at [22] above.
Mr Free argues that the Tribunal did give an adequate account of its reasons, including those behind its findings that the applicant was not a witness of truth and therefore that her claims should not be accepted. Mr Free argues that the applicant’s reliance on WAEE v Minister for Immigration (2003) 75 ALD 630 is not appropriate as this is not a case in which the Tribunal failed to consider a relevant aspect of the applicant’s claims: WAEE at [45] – [52].
I agree with the submissions made by Mr Free that the third ground cannot be sustained.
The fourth ground alleges that the Tribunal finding that the applicant had unreasonably delayed her departure from China was unreasonable and without foundation. Mr Free submits that this ground constitutes an impermissible attempt at merits review of the Tribunal decision. It is not a function of this Court when dealing with an application for judicial review to reconsider the merits of the Tribunal decision or to engage in a fact-finding exercise in relation to an applicant’s claims: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259; NAHI v Minister for Immigration [2004] FCAFC 10 at [10].
Mr Free submits that the Tribunal made a factual finding that the applicant’s delay in departing from China was inconsistent with her claim that she feared persecution in China particularly given the “seriousness” of those claims. This finding was plainly open to the Tribunal on the facts and its conclusion on this point cannot be described as lacking in foundation, reason or logic. Neither can the Tribunal’s reasons be characterised as arbitrary or perverse, and resulting in jurisdictional error. I accept Mr Free’s submissions in respect of ground four and agree that this ground cannot be sustained.
When the applicant was invited to respond to either the oral or written submissions made by Mr Free, she briefly repeated a number of her earlier submissions which essentially focussed on the merits of the Tribunal decision.

Conclusion

The applicant in these proceedings is a self-represented litigant who appeared with the assistance of a Mandarin interpreter. I acknowledge that the applicant faces great difficulty as she does not understand the legal system in which she has brought these proceedings. She has received assistance from different sources and is confused about most of the documents filed in the proceedings. Someone with limited knowledge of the judicial review process has assisted with written notes in Mandarin setting out issues and arguments similar to the grounds contained in the further amended application. It was apparent that the applicant did not comprehend many aspects of the proceedings and how she was to present her case with a view to succeed. I am satisfied that no ground of judicial error has been identified in the further amended application. Mr Free, appearing for the respondents, assisted the Court with written and oral submissions addressing the pleaded grounds of the applicant. I am satisfied that no other ground of review exists to suggest that the Tribunal made a jurisdictional error in its decision making process. Consequently, the applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 22 May 2007