SZJCC v Minister for Immigration - [2007] FMCA 255

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJCC v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 255

MIGRATION – Application to review decision of Refugee Review Tribunal – whether compliance with s.424A Migration Act 1958 – whether applicant gave information to the Tribunal – no jurisdictional error.

Migration Act 1958 (Cth), ss.420, 424A

NAZY v Minister for Immigration & Multicultural Affairs (1987) ALD 357
NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 361
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214

Applicant:

SZJCC

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG2020 of 2006

Judgment of:

Barnes FM

Hearing date:

27 February 2007

Delivered at:

Sydney

Delivered on:

27 February 2007

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Mr D Godwin

Solicitors for the Respondent:

Phillips Fox

ORDERS

The application is dismissed.
The applicant shall pay the first respondent’s costs fixed in the sum of $6,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2020 of 2006

SZJCC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal made on 29 June 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant, a citizen of the People’s Republic of China, arrived in Australia in January 2006 and applied for a protection visa. In connection with his protection visa application he provided a statement in which he claimed that he was head of his village, that he had hidden some Falun Gong members in 1999 and informed them of danger, had done what he could to help them. He claimed that in 2005 police began to pay attention to him, because one of the members was arrested and disclosed him to the authorities. He claimed that the police came to his home to take him away for investigation and that he suffered physical and mental torture.
It is also relevant to note that as part of his protection visa application the applicant attached a copy of the identity page for his passport which showed a date of issue as 30 June 2005.
The application was refused and the applicant sought review by the Tribunal. The applicant attended a Tribunal hearing. The transcript of the hearing is before the Court as an annexure to an affidavit of Kimberley Karen Rose sworn and filed on 5 January 2007. It is apparent from that transcript that, as the Tribunal stated in its reasons for decision, at the hearing the applicant told the Tribunal that he had a new statement and indicated that there were some mistakes in the original statement. The applicant read the statement in Chinese to the Tribunal which was translated.
In that statement the applicant claimed that while he was not a Falun Gong practitioner, they called him their leader. In 1998 his wife started to practise Falun Gong at home and became acquainted with Falun Gong practitioners. He claimed that he supported this. After the government suppressed Falun Gong he claimed that because he passed information to a Falun Gong practitioner the police conducted investigations against him and his family members. He claimed that his wife’s mental condition deteriorated and the whole family endured mental torture and that before the police took further action he came to Australia.
In its reasons for decision the Tribunal recorded the information provided by the applicant, including at the Tribunal hearing. It noted that the applicant had brought to the Tribunal a passport issued on

9 June 2006, only a few days before the Tribunal hearing, and that the applicant stated this had been issued to replace his 2005 passport on which he had travelled to Australia.
In its findings and reasons the Tribunal accepted that the applicant was a citizen of the People’s Republic of China. It noted that the statement that the applicant read at the hearing appeared to resile from claims made in the primary application, but did not rely on that, especially as the applicant was rather vague on some points and as the applicant claimed he was only pointing out discrepancies. The Tribunal stated that it would therefore address independently the claims made in each statement.
In so doing it found first that the notion that Falun Gong practitioners would inform authorities that the applicant (who was not a Falun Gong practitioner) was their local leader was not credible. It referred to the absence of a conventional leadership structure in the Falun Gong. It also found the proposition that the applicant and his wife were subject to interviews by police from 1999 to 2005 without having been detained or charged as stated in his statement at the hearing not to be credible. It was also not credible given the notorious harshness with which it found that Falun Gong practitioners were treated.
The Tribunal considered the initial claim of the applicant that he had been arrested and tortured in 2005. It found that, since the was able to obtain a passport and leave PRC and, as indicated by the new passport, obtain another in Sydney when the first was lost, it did not accept that he was either arrested and tortured in that year or in any other year. It also found that the fact that the applicant should have been able to obtain not one but two passports without difficulty indicated that he was of no concern or interest to the security authorities.
As the applicant’s wife had apparently not been arrested or obliged to attend re-education classes it did not accept that she was known to be a Falun Gong practitioner or that she was or had been of any interest to the Chinese authorities. The Tribunal did not accept that there was a real chance of the applicant suffering harm amounting to persecution for a Convention reason if he were to return to China.
The applicant sought review by application filed in this Court on

21 July 2006. The application was accompanied by an affidavit to which a copy of the Tribunal’s reasons for decision was attached.
The applicant now relies on an amended application filed on 9 November 2006. He also made oral submissions, to which I will return. The first ground in the amended application is an allegation that the Tribunal was biased against the applicant, “did not believe [his] claims without giving reasons”, failed to consider his claims and failed to consider his application according to section 91R of the Migration Act.
An allegation of bias or bad faith is not lightly made and must be clearly alleged and proved (SBBS v MIMIA [2002] FCA 361 at [43]). There is nothing in the material before the Court to establish either actual or apparent bias on the part of the Tribunal. The Tribunal considered the applicant’s claims. Based on the evidence before it, the Tribunal considered not only the claims made in connection with the protection visa application but also the claims made at the Tribunal hearing. However it found for reasons that it gave that it did not accept that the harm which the applicant claimed had occurred in the past had happened or that he was of concern or interest to the security authorities in China.
The findings in relation to credibility of the applicant’s claims were open to the Tribunal on the material before it and no bias is established in the manner in which it dealt with those claims. I note that in this the respondent filed and relied on a copy of the transcript of the Tribunal hearing. There is no suggestion from the applicant that anything in the hearing is such as to indicate bias on the part of the Tribunal, save perhaps for the fact that the applicant took issue in oral submissions with the haste of the Tribunal decision.
It is apparent from the transcript of the Tribunal hearing and from the Tribunal reasons for decision that at the end of the Tribunal hearing the Tribunal member indicated that there would be a short break. After the hearing resumed the Tribunal member informed the applicant that the Tribunal had decided that he was not entitled to a protection visa and that a copy of the Tribunal decision and reasons would be sent to him in a short time. However the fact that the Tribunal made the decision at the conclusion of the Tribunal hearing is not such as to establish in the circumstances of this case either actual or apprehended bias on the part of the Tribunal. I note in that respect the requirement of section 420 of the Migration Act that the Tribunal pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. Further, apart from the statement which the applicant read to the Tribunal at the hearing, there is nothing in the material before the Court to suggest that the applicant sought or that the Tribunal undertook to provide further time to provide further information. No bias or other jurisdictional error is established based on the applicant’s claims in relation to the speed of the Tribunal decision.
Moreover, having considered and rejected the applicant’s claims about past harm, it was not necessary for the Tribunal to determine whether the harm complained of or feared was such as to satisfy the requirements of s.91R of the Act as contended.
The second ground in the amended application is that there was a failure to comply with s.424A of the Migration Act 1958. It was contended that the application was refused at the hearing and that the applicant was not notified of the reason or part of the reason for affirming the decision. Reference was made to SAAP v MIMIA [2005] HCA 24 but there was otherwise no explanation as to precisely what information the applicant envisaged as coming within s.424A. In so far as this is a contention that the Tribunal’s thought processes or provisional views should have been put to the applicant for comment, there is no such obligation under s.424A(1).
There is one issue in relation to the application of s.424A which was raised and addressed by the first respondent’s written submissions. That arises from the fact that the Tribunal relied in part on information concerning the applicant’s ability to obtain two passports. As indicated, it referred to the fact that the applicant had been able to obtain a passport and leave the country and, as indicated by the new passport presented to the Tribunal, obtain another in Sydney when the first was lost. It also found that the fact that the applicant “then should have been able to obtain not one but two passports without difficulty also indicates that he is of no concern or interest to the security authorities”.
The information as to the grant of the 2006 passport was clearly information which the applicant gave to the Tribunal. Hence it is within the s.424A(3)(b) exception. The Tribunal also relied, however, on information as part of the reason for affirming the decision under review concerning the 2005 passport, that being that it was obtained by the applicant in 2005 without difficulty. It is apparent that the applicant had provided a copy of the 2005 passport with his protection visa application and that in response to a question in the protection visa application had ticked that he left China legally and in response to the question, “Did you have any difficulties obtaining a travel document such as a passport in your home country?”, ticked “No” and did not provide any details.
However, in the course of the Tribunal hearing the following discussion between the Tribunal and the applicant about the fact that the passport he presented at the hearing was different to the one that he attached to the protection visa application took place. Relevantly, the Tribunal member observed that the applicant had a new passport and the applicant replied:
I lost the passport with my – I had to apply for this travel document.
TRIBUNAL:   But you came here with a tour group. Are you sure that the leader of the tour group didn’t retain your passport – your previous one?
APPLICANT:   No.
TRIBUNAL:   Where did you lose it then?
APPLICANT:   After I came here I moved house several times. I didn’t realise where – how I lost it.
TRIBUNAL:   Okay, you got a new one on 9 June. It was issued by the Consular (sic) General in Sydney?
APPLICANT:   Yes.
TRIBUNAL:   And the one you lost was issued last year?
APPLICANT:   Yes.
TRIBUNAL: Which means, to me, that the Chinese authorities are not interested in you. You have been able to obtain two passports within 12 months. Isn’t that true?
APPLICANT:   Yes.
Immediately thereafter the Tribunal member then asked the applicant “Is there anything else that you would like me to consider?” The applicant asked whether the review would be known in China to the Chinese police.
In light of this exchange it was contended for the first respondent that the applicant had positively confirmed in his evidence to the Tribunal that he obtained his 2005 passport without difficulty and hence that the information relied on in relation to the obtaining of the passport is information to which s.424A(3)(b) applies.
There are a number of Full Federal Court and Federal Court authorities in relation to the scope of s.424A(3)(b) and as to when information which is first provided to the Department is subsequently given to the Tribunal as a result of what occurs in a Tribunal hearing.
In this case the applicant is self-represented. I have nonetheless considered the relevant authorities and their application to the present situation. In particular I have considered whether this is a situation akin to that considered by Jacobson J in NAZY v MIMA (1987) ALD 357 consistent with the principles in SZEEU v MIMIA (2006) 150 FCR 214 or whether the circumstances can be distinguished from those considered in NAZY.
As discussed in the subsequent Full Court decision in NBKT v MIMA [2006] FCAFC 195 per Young J (with whom Gyles and Stone JJ agreed) in NAZY Jacobson J had held that the exception in section 424A(3)(b) applied to information from the protection visa application which an applicant for review expressly adopted and put forward as part of his application for review by the Tribunal. However in the circumstances of NAZY his Honour held that information that had been provided during questioning by the Tribunal member did not fall within the scope of the exception and that the mere adoption of a statement provided in support of a protection visa application did not render it information given by the applicant for the purposes of the review.
It is relevant to note that in NBKT Young J was of the view that the decision in NAZY did not go so far as to require that information be put to the Tribunal in chief rather than being elicited by Tribunal questioning in order to fall within the 424A(3)(b) exception. Rather his Honour had regard to the particular circumstances and kind of information and the way in which that might be put to the Tribunal. As his Honour stated at [59] after a discussion of the relevant authorities:
These authorities highlight the importance of giving careful consideration to the nature of the information that is said to fall within section 424A(3)(b) and the circumstances in which it is communicated to or elicited by the Tribunal. There may be good reasons for requiring that the applicant affirm or actively give specific information for the purposes of the review in order for the exemption in section 424A(3)(b) to apply. Both SZEEU and NAZY suggest that the exception may not apply where the appellant does no more than affirm the accuracy of a statement which contains many diverse pieces of information. At the same time the weight of authority indicates that artificial distinctions should not be drawn between information that is provided by an applicant in the course of his evidence-in-chief rather than in answer to questions posed by the Tribunal.
Young J found in NBKT that the relevant information (which was information given in response to questioning about the date of the applicant’s arrival in Australia and the approximate date of the protection visa application) was what he described as “uncontentious factual material” that formed an essential element of the decision under review and that the appellant had either expressly provided or affirmed the relevant dates in response to basic propositions put by the Tribunal at the hearing, that the Tribunal questions arose naturally from the appellant’s application and that in those circumstances, and given the uncontentious factual nature of the information, the exemption in s.424A(3)(b) applied.
Similarly, in this case the applicant positively confirmed in his evidence to the Tribunal that he obtained his 2005 passport effectively without difficulty (as indeed he had stated in question 48 in his protection visa application.) While that information is not simply a date of an event, in the context of the material before the Tribunal, it is material of an uncontentious nature. No issue was raised by the applicant in relation to difficulties in obtaining his passport. This situation can be distinguished from the situation in NAZY where the Tribunal had asked the applicant to confirm the whole of an earlier statement (and see the discussion in SZEEU of such different situations.)
In all the circumstances I am satisfied that the information in question was information which the applicant gave to the Tribunal for the purposes of the review and that it is within the exception to s.424A(1) in s.424A(3)(b).
The applicant sought in oral submissions to take issue with the Tribunal’s reasons for decision in a number of respects. One of those related to the Tribunal findings in relation to his passport situation. He took issue with the fact that the Tribunal had not asked him how he obtained the passport. In essence he seemed to be concerned that the Tribunal had failed to extract information from him concerning the circumstances in which he had obtained his passport in China.
First, it is well established (see SZBC v MIMA (2000) 231 ALR 592 at 601) that Tribunal proceedings are inquisitorial, not adversarial and that it is for the applicant to establish his claims. There was no obligation on the Tribunal to attempt to elicit further information from the applicant in this respect, particularly in circumstances where not only did the applicant state in his protection visa application that he had no difficulties but also there was reliance by the delegate in the delegate’s reasons for decision on the fact that the applicant was granted a passport in June 2005 in his own name and able to leave China without apparent problem some seven months later. Hence the relevance of that issue was apparent.
There was no obligation on the Tribunal to raise this issue beyond the manner in which it did at the hearing. In that respect I note also that, as set out above, immediately after the Tribunal raised the issues that it wished to address in relation to the applicant’s passport and put to the applicant that this meant to the Tribunal that the Chinese authorities were not interested in him, the Tribunal asked the applicant if there was anything else that he would like it to consider. The applicant was clearly given the opportunity to put further information to the Tribunal, not only in relation to the circumstances in which he obtained his passport but also in relation to any other aspect of his claims. The Tribunal was under no obligation to make further inquiries as contended.
Nor was it under an obligation to ask the applicant more specific or detailed questions, having given him an opportunity to address the issues that it had and also to provide any other information that he wished to put before it. In so far as it may be intended to suggest that there was a contravention of s.424 of the Migration Act, that is not established.

Finally the applicant suggested that he was not given a further opportunity to provide further documents. As indicated above, there is nothing in the material before the Court to suggest that the applicant sought an adjournment of the Tribunal hearing or that the Tribunal delay making its decision. Nor did the Tribunal undertake in any way to grant the applicant additional time. No jurisdictional error is established in relation to the applicant’s concern about the time he was given in the Tribunal review. As no jurisdictional error has been established the application must be dismissed.
The applicant has been unsuccessful. It is appropriate that he meet the costs of the respondent. The respondent seeks costs in the sum of $6,500. The costs are above what might otherwise have been incurred or awarded, because of the need to obtain and consider the transcript of the Tribunal hearing in the application in light of the applicant’s generally expressed ground in relation to s.424A of the Migration Act. In the particular circumstances of this case I consider that the amount sought is appropriate having regard to the nature of this and other similar matters.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 13 March 2007