SZJBV v Minister for Immigration
[2007] FMCA 1280
•19 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJBV v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1280 |
| 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 a protection visa – applicant is a citizen of the People's Republic of China claiming fear of persecution because she wrote a report about the condition of Falun Gong practitioners in a detention centre – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 424A(1), 424A(3)(a), 424A(3)(b), 425, 474(2) |
| Abebe v Commonwealth [1999] HCA 14 Craig v South Australia (1995) 184 CLR 163 Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 SZBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 358 SZBEL v Minister for Immigration & Multicultural Affairs [2006] FCA 59 |
| Applicant: | SZJBV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1991 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 19 July 2007 |
| Date of Last Submission: | 19 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 19 July 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Mr P. Braham |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The title of the first respondent is changed to Minister for Immigration and Citizenship.
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $5,000.00.
I will allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1991 of 2006
| SZJBV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision which was handed down on 22nd June 2006 affirmed the decision of a delegate of the Minister not to grant the applicant a protection (Class XA) Visa.
The applicant seeks judicial review of that decision and in particular she seeks orders as follows:
i)A declaration that the decision was invalid and contrary to law.
ii)An order that the decision should be quashed or set aside.
iii)An order in the nature in a writ of mandamus that the application be remitted to the Refugee Review Tribunal for determination in accordance with law.
The applicant filed her application and affidavit in support on
19th July 2006; a year ago today. At that time the title of the minister, who is the first respondent to the application was Minister for Immigration & Multicultural Affairs. The Minister's title has changed to Minister for Immigration & Citizenship. I will make a formal order changing the title of the first respondent in these proceedings to Minister for Immigration & Citizenship.
The background to this matter is that the applicant is a citizen of the People's Republic of China. She arrived in Australia on 24th September 2005. She travelled on a passport issued by the People's Republic of China in the name of another person. On 8th November 2005 the applicant applied to the Department of Immigration & Multicultural Affairs as it then was for a protection (Class XA) Visa.
She accompanied her application with a statutory declaration in which she set out her history. She described herself as a nurse by occupation who had graduated from a medical college in January 1998. At that time her father was running an eel farm in the area of Longtian.
The farm was destroyed by floods and the applicant's father received little in the way of compensation. The father organised a demonstration with about 30 former employees of the eel farm to protest about this situation. The authorities did not take kindly to this and the applicant's father was beaten by the police, arrested and detained in a detention centre. The applicant describes how her father remained in the detention centre for about two months from October to December 1998 and at that stage he was physically and mentally tortured. Eventually he was released in December 1998.
The applicant in September 2000 obtained employment as a nurse at a hospital in Fujian province. The Fuquing Rongquiang Hospital.
The applicant described how in January 2004 she treated a patient, called Mr Chen, who appeared to have been beaten and tortured by the police. He remained in hospital for about a month and the applicant found out that he had been arrested and detained by the authorities because he was the member of an underground Christian church.
The applicant met him again when he presented at the hospital for treatment in March 2005. The applicant said that she found out that Mr Chen needed but could not afford medical treatment and she obtained some assistance for him.
In May 2005 the applicant was required by the hospital to provide urgent medical treatment for people detained in the detention centre. She found that the conditions in which they were held were extremely poor and unhealthy. She later told that to Mr Chen. Later still the applicant, believing that her position in the medical profession required her to assist the wounded and the dying, sent a report to the authorities about the detention centre. Meanwhile Mr Chen organised a demonstration and Mr Chen and three other members who were protesting with him were all arrested.
After this had occurred the applicant was dismissed by the hospital and investigated by the Public Security Bureau. She claimed to have been interrogated by the police ten times. She claimed that she decided to go overseas to escape from persecution, but because she was under investigation could not use her real name in her travel documents.
She said that some friends had obtained a passport for her in the name of another person.
On 6th February 2006 a delegate of the Minister refused the applicant's application for a protection visa. On 7th March 2006 the applicant applied to the Refugee Review Tribunal for a review of that decision. No other information was supplied by the applicant's migration agent to the Tribunal at the time the application for review was made.
The Tribunal invited the applicant to attend a hearing on Tuesday
18th April 2006. The applicant attended that hearing and gave evidence with the assistance of an interpreter in the Mandarin language.
She told the Tribunal that the statutory declaration that she had made when she applied for her protection visa was the same as the statement that she had written in Chinese which she had provided to her migration agent who had had it translated for her.
The Tribunal asked the applicant a number of questions about her application, including about her history of employment as a nurse and the letter that she wrote in 2005 complaining about the conditions in the cells occupied by the detainees in the detention centre.
The Tribunal asked her about her relationship with Mr Chen and put to the applicant that the Tribunal had difficulty in believing that the authorities would have allowed Mr Chen, who is in administrative detention, to come to his home town for treatment. The applicant said that she believed that Mr Chen's wife had paid bail money.
The Tribunal asked the applicant a number of other questions about her situation and expressed doubts about parts of her story, particularly relating to the protests which she said had occurred.
A copy of the Tribunal decision record appears in the Court book at pages 82 through to 93. A copy of the Tribunal's findings and reasons appear at pages 91 to 93 of the Court book. The Tribunal was satisfied that the applicant is a national of the People's Republic of China. Because the applicant had produced identification documents in two different names, the Tribunal could not make a finding with certainty as to the applicant's real name.
The Tribunal was satisfied about the applicant's account of the difficulties that her father had sustained in 1998, including being detained, ill-treated and released. The Tribunal was prepared to accept that the applicant had written the letter that she said that she had written in 2005 complaining about the health conditions in which the detainees at the detention centre had been held. However, the Tribunal expressed this view:
She also does not claim to have been questioned about the letter until 23 July from which I infer that the letter was treated as of little consequence and certainly not as having been written by a political activist of any sort. Further, she had no record of any previous political activity at all. It is therefore somewhat inconsistent with all this that merely because of local protests the letter was later used as the basis of suspicion that she was involved in some form of anti-government activity.
See Court book page 91.
The Tribunal was not satisfied that the applicant's claims about the treatment of Mr Chen were true and the Tribunal described the reasons for the applicant having been questioned by the PSB on over ten occasions from 23rd July 2005 as being highly unconvincing.
The Tribunal went on to say:
Further, she gave internally inconsistent evidence to the Tribunal as to how many protests there were in June and July last year and which ones were attended by Mr Chen. Her evidence about the events of June and July last year lacked cogency and I am not satisfied that she was suspected by police of any political activism. It follows that I am not satisfied that she was questioned by police because of such a suspicion. If the applicant was dismissed from her job last year; I am not satisfied that that was because of a political opinion imputed to her. If she left China with a passport in another name, the reason for doing so may relate to the fact that it contained an Australian Visa and not because she feared leaving the country using her own identity for fear of arrest. Whatever the reason may have been, I am not satisfied that she left China because of the fear of harm arising from a political opinion imputed to her. The chance is remote that the applicant might face any serious harm for a convention reason if she returns to China.
See Court Book page 92.
The Tribunal found that the applicant did not have a well-founded fear of convention related persecution in China and affirmed the delegate's decision not to grant her a protection visa.
The applicant commenced proceedings in this Court for review of that decision and filed an amended application on 6th October 2006. In that application she sets out three grounds for relief. Two of those grounds, albeit with different particulars, claim that the Tribunal failed to comply with the provisions of s.424A(1) of the Migration Act 1958 (Cth) (“the Act”). The third ground is that the Tribunal failed to comply with the obligations under s.425 of the Act.
Turning to the particulars given of the breach of s.424A; the applicant refers to the Tribunal's reliance on independent country information and claims that the Tribunal had made a wrong finding about certain of her claims and completely ignored what she said was the most important issue relating to human rights. She went on to say that the tribunal relied on information about her report to make a complete incorrect finding regarding the protests. She said that the protest was because of what she had told to Mr Chen about conditions in the detention centre and the key issue was that if she had not told everything to Mr Chen there would not have been any protests.
I should say at this stage that those particulars do not relate to s.424A of the Migration Act at all. The information to which the applicant refers is quite clearly information that came from the applicant herself and was given to the Tribunal by the applicant and was thereby excluded by the operation of s.424A(3)(a) of the Migration Act. In any event; the applicant is saying that the Tribunal used that information to make factually wrong findings and what in effect she is doing is challenging that the Tribunal's factual findings are in an attempt to obtain merits review of the Tribunal decision. Merits review is not available in proceedings for judicial review.
The applicant goes on to claim that the Tribunal relied on misunderstandings in relation to her review application and submits that the Tribunal has identified a wrong issue, ignored relevant material, relied on irrelevant material or made an erroneous finding. She seeks to rely on the decisions of the High Court in Craig v South Australia (1995) 184 CLR 163 and Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26.
The particulars do not identify what wrong issue the Tribunal identified nor set out what relevant material the Tribunal ignored. The particulars do not set out what irrelevant material the Tribunal relied on. As to an erroneous finding; if it is an erroneous finding of fact then that is not a ground for judicial review as set out in Abebe v Commonwealth [1999] HCA 14.
In my view, the particulars relating to the applicant's first claim of a breach of s.424A of the Migration Act do not disclose any jurisdictional error.
The second ground alleging a failure to comply with s.424A of the Migration Act refers to the text of sub-s.(1) and alleges that the Tribunal failed to give her particulars of any information that the Tribunal considers would be the reason or a part of the reason for affirming the decision that was under review and failed to ensure that she understood why it was relevant and failed to invite her to comment on it.
I asked the applicant about this claim as to where this information that she said that the Tribunal relied on came from and she pointed out that this information was information that she had provided to the Tribunal. I expressed the preliminary view that in such a case that information would not come under s.424A(1) due to the operation of s.424A(3)(b) of the Act.
The applicant claims also that the Tribunal failed to comply with its obligations under s.425 of the Act. The particulars of that claim are as follows:
a)On the surface the presiding member did discuss with me about limited claims but she never genuinely intended to go to any details. However, she obviously refused to make me clear what the negative issues had raised in relation to my application and she particularly refused to ensure me to understand what particulars of those pieces of information that she intended to use as a reason or part of the reasons in determining my review application during the hearing.
b)As a result I have been denied to present my arguments against those negative issues in relation to my review application during the hearing.
The particulars of that claim, a breach of s.425 of the Migration Act appear to suggest some bad faith on the part of the Tribunal member.
If that is the case it is well established that bias or bad faith is a serious allegation which must be strictly alleged and strictly proved.
(See SZBBF v Minister for Immigration & Multicultural & IndigenousAffairs [2002] FCA 358 and SBBS v Minister for Immigration &Multicultural & Indigenous Affairs [2002] FCAFC 361 at [43]).
There is no evidence of any bad faith on the part of the Tribunal member. The particulars also suggest a breach of s.424A(1) of the Act and in my view I have already dealt with that. It is clear that the tribunal exercised its obligation under s.425 of the Act to invite the applicant to attend the hearing to give evidence and present arguments about her case. An interpreter in the Mandarin language was provided and there is no evidence by way of transcript or affidavit to indicate that there was any irregularity or inadequacy in the interpretation of the applicant's evidence or any irregularity in the way in which the hearing was conducted.
I am mindful of the requirements of SZBEL v Minister for Immigration & Multicultural Affairs [2006] FCA 59. I have had the opportunity of reading the protection (Class XA) visa decision record prepared by the delegate; a copy of which appears on pages 57 through to 62 of the Court book. It is clear from the decision record at pages 61 and 62 that the delegate dealt with the primary claim in the applicant's application that the authorities in China may mistreat people who raise public grievances and people who are seen to threaten public harmony.
The delegate noted that the applicant claimed to have lost her job and been interrogated ten times by the PSB because she was accused of having a role in organising a public demonstration to protest against the mistreatment of detainees. This arose from the applicant's report about those conditions written in June 2005.
At page 62 of the Court book the delegate had this to say:
Whilst country information indicates that people who raise public grievances may be subjected to adverse attention, there is no evidence before me to indicate that the applicant has raised any public grievance and the applicant does not claim to have raised any issues in public. She claims only to have sent a report to the authorities of an unnamed detention centre. I do not accept that this would give to the applicant the profile of a public dissident.
This issue was clearly an issue in the proceedings before the Tribunal. The Tribunal noted at page 91 of the Court book:
She also does not claim to have been questioned about the letter until 23 July from which I infer that the letter was treated as of little consequence and certainly not as having been written by a political activist of any sort. Further, she had no record of any previous political activity at all. It is therefore somewhat inconsistent with all this that merely because of local protests the letter was later used as the basis of suspicions that she was involved in some form of anti-government activity.
The applicant was hardly taken by surprise by this finding of the Tribunal because it was an issue that was squarely raised by the delegate. I am not satisfied that there has been shown any breach of s.425 of the Act.
The applicant, as Mr Braham of counsel for the respondent Minister points out, seemed to have raised in her oral submissions an additional ground. This ground relates to the Tribunal's findings to which I have previously referred, as further breach of s.424A of the Act. I am satisfied that it is not a breach. The passage referred to by the applicant relates to the Tribunal's conclusions based on information provided by the applicant to the Tribunal and is therefore excluded from the operation of s.424A.
As to the Tribunal's findings of inconsistencies; inconsistencies are not information as such and in any event where there are inconsistencies, they are inconsistencies between pieces of evidence given by the applicant to the Tribunal. No jurisdictional error has been made out. The applicant is not legally represented. I have examined the decision record and the supporting material in the Court book independently of either the applicant's application and submissions and the respondent's response and submissions and I am satisfied that no other arguable case of a jurisdictional error can be made.
As no jurisdictional error has been made out I am satisfied that the Tribunal decision is a privative clause decision as defined by s.474(2) of the Migration Act. Privative clause decisions are final and conclusive and are not subject to declaration or orders in the nature of certiorari or mandamus. It follows that the application must be dismissed.
I am satisfied that this is an appropriate matter for an order for costs in favour of the first respondent Minister. The amount sought, which includes counsel's fees, is $5,000.00 which is an amount allowed by the rules. I note that the applicant is not in employment and I will take that into account as to her capacity to pay.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 30 July 2007
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