SZJCX v Minister for Immigration & Anor
[2006] FMCA 1795
•19 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJCX v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1795 |
| MIGRATION – Review of Refugee Review Tribunal decision. PRACTICE AND PROCEDURE – Application – dismissal of application. |
| Migration Act 1958, ss.91X, 424A Federal Magistrates Court Rules, r.13.03(e) |
| Abebe v The Commonwealth (1999) 197 CLR 510 NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744 NBKS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 174 Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 SZDPY v Minister for Immigration & Multicultural Affairs [2006] FCA 627 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200 SZGGT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 435 SZHFC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1359 Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 VWBF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 851 Win v Minister for Immigration & Multicultural Affairs (2001) 105 FCR 212 |
| Applicant: | SZJCX |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2086 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 27 November 2006 |
| Date of Last Submission: | 27 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 19 December 2006 |
REPRESENTATION
| There was no appearance by the applicant |
| Counsel for the Respondents: | Ms R. Francois |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2086 of 2006
| SZJCX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application dated 10 October 2006, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) handed down on 13 July 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 1 March 2006 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
When the matter was called on for hearing at 2.15pm on 27 November 2006, there was no appearance for the applicant, although she had been present in court at the directions hearing on 31 October 2006 when the hearing date was set and the court’s file records that a Mandarin interpreter was present. The court adjourned until 2.45pm to allow the applicant further time to appear. At this point the court provided the respondents with a copy of the amended application which had been filed but not, apparently, served.
When the matter was called at 2.45pm there was again no appearance by the applicant. The court adjourned for a further fifteen minutes in order that the respondents’ solicitors could make enquiries of their office to determine whether the applicant had presented herself there. Enquiries were also made of the registry at Queens Square during that period.
When the matter was called again at 3pm, there was no appearance by the applicant and the enquiries at the offices of the solicitors for the respondent had not revealed any contact or attendance there by the applicant and the enquiries by my Associate had not identified any mistaken attendance by the applicant at the registry at Queens Square.
The first respondent then made an application that the matter proceed to a hearing pursuant to Rule 13.03A(e) of the Federal Magistrates Court Rules. Following submissions I granted the application.
Background facts
The applicant arrived in Australia on 20 December 2005, on a visitor’s visa.
The applicant claims to have been persecuted and to fear future persecution in China because of her membership of an unregistered independent union and her subsequent opposition to particular government policies
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 3 to 5 of the Tribunal’s decision (Court Book (“CB”) pages 91-93). Relevantly, they are in summary:
a)the applicant claims to have been employed in a “food staff station” where she was a “sales person in charge of food staff”;
b)this was a state owned enterprise which invited staff members, including the applicant, to accept voluntary redundancy in 2000. The applicant says that she was offered a substantial payment if she accepted redundancy but, having accepted the offer, the payment was not made. Other workers in a similar position were also not paid their redundancy payments;
c)after waiting a period of months for the redundancy payment the applicant and her colleagues organised an independent workers’ union on 1 January 2001;
d)the redundancy payments still not having been paid, the applicant and “backbone members in the union started to hold … silent demonstration” in front of the Reijiang City Council. The first was held on 12 January 2001, which was forcibly broken up by the police;
e)the applicant and her colleagues then decided to send a delegation to Beijing. The applicant was a member of this delegation which, en route to Beijing, was arrested and detained. The applicant and her colleagues were then sent to a detention centre and “rudely mistreated”;
f)during this interim detention, the applicant was sentenced to “3 years labour reform on 23 February 2001 due to so called threatening national security and social stability”;
g)the applicant’s parents used their life savings to pay a RMB30,000 bribe to have her released on medical grounds for three months. Following this release, and because there was no guarantee that she would not be put back into the camp after that period had expired, the applicant went to live in a another town and subsequently fled to a second town when something went wrong at the first one. During this period the applicant was using a false name and a forged identity card; and
h)the applicant then describes being homeless and a vagrant for four years. However, she was able to save some money and paid RMB40,000 to an “officer in a world travel company” to obtain a legal passport, a visa to Australia and, impliedly, an airline ticket to Australia.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found it was not satisfied that the applicant is a person to whom Australia has protection obligations. The Tribunal’s decision was based on a finding that the applicant was not a witness of truth which, in turn, was based on the following findings and reasons which are paraphrased in the first respondent’s outline of submissions as follows:
5(a)when confronted with an inconsistency between her evidence at the hearing and her written statement, the applicant did more than say she forgot (which RRT accepted was plausible) but went on to claim for the first time that her memory had been affected by a hit in the head while in detention;
(b)the applicant’s claims that she and her two colleagues had been detained in January 2001 to prevent them disclosing “secrets” was implausible given that none of the other unionists who knew those secrets were detained;
(c)after her escape the applicant at first said she did not know or enquire about what became of her two colleagues but after further questioning by the RRT she changed her story and said she had probably been told that her former colleagues had been ‘sentenced’;
(d)during the hearing the applicant had changed her answers about the length of time a married couple were required to be separated before divorcing in China from 4 to 5 years to 2 to 3 years when confronted with the fact that on her evidence she had not been separated from her husband for 4 years before he was able to divorce her; and
(e)the applicant raised for the first time at the hearing that her husband was harassed about her whereabouts after she escaped and the RRT did not accept that the applicant would not have understood the relevance of this fact when making her written statement. [footnotes omitted]
In essence, the Tribunal found that because the applicant was not a witness of truth it was satisfied that there were reasonable grounds to reject all her material claims (CB 98.4)
Proceedings in this Court
The grounds of the amended application can be summarised as follows:
a)the Tribunal did not make a fair decision on the applicant’s claim to have a well-founded fear of persecution;
b)the Tribunal did not consider the difficulties faced by the applicant in gathering new evidence from China;
c)the Tribunal did not serve evidence on the applicant before it made its decision;
d)the Tribunal’s decision was infected with jurisdictional error;
e)the Minister’s department abused its power;
f)the interpreter at the Tribunal hearing misrepresented the applicant’s oral evidence
Dealing with each of these grounds in turn:
The Tribunal did not make a fair decision on the applicant’s claim to have a well-founded fear of persecution;
No particularised instances of unfairness have been proffered by the applicant in respect of this ground which really only suggests that the Tribunal ought to have reached a decision different from the one which it did reach.
When considering the applicant’s claim the Tribunal did take into account facts advanced by the applicant but ultimately found her to lack credibility with the consequence that the Tribunal rejected all of her material claims. It is open to the Tribunal to conclude, on the evidence, that the applicant is not to be believed.
The Tribunal did not consider the difficulties faced by the applicant in gathering new evidence from China;
This ground suggests that the Tribunal has an obligation to assist the applicant in the presentation of her case. Certainly the Tribunal had no obligation to make the applicant’s case for her: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 170.
Alternatively, this ground might suggest some deficiency in the meaningfulness of the s.425 invitation to attend the hearing. However, having attended, the applicant has not suggested that she was denied the opportunity to adduce additional evidence nor that she even sought to. The transcript of the Tribunal hearing, which is before the Court as an annexure to the affidavit of Sharon McLean sworn 24 November 2006, indicates no such request. Indeed, on page 23, the Tribunal asked the applicant whether she had anything more to say and she said that she did not.
An applicant before the Tribunal must advance whatever evidence or arguments he or she wishes to rely on in support of his or her claim for a protection visa: Abebe v The Commonwealth (1999) 197 CLR 510 per Gummow and Hayne JJ at 576 [187]. If the applicant did not raise this issue with the Tribunal, and there is nothing before the Court to indicate that she did, then this ground does not indicate reviewable error on the part of the Tribunal.
The Tribunal did not serve evidence on the applicant before it made its decision
During the course of the evidence to the Tribunal the applicant made reference to a head injury which had not previously been mentioned. The Tribunal refers to this in these terms:
… I then asked the applicant why she had not mentioned [a particular asserted fact]. She claimed she forgot. With respect, I think this is quite plausible. However, the applicant then went on to claim she had a ‘bad memory’ resulting from her head being hit when she had been detained by the PRC police in January 2001 … I asked the applicant if she had ever mentioned her ‘bad memory’ prior to the hearing with the Tribunal. She claimed not to have done so. … (CB 94.2)
In its findings and reasons at CB 94.5, the Tribunal said:
As stated above, I believe it quite plausible an applicant may not be able to recall every single claim in their written Protection Visa application (particularly where those claims are written in a language in which they are not competent). However, I do not accept the applicant would have for instance, made reference in her 4 ½ typed pages of written refugee claims (to the Department) that she was detained in January 2001 and “they beat us hardly, did not provide enough food…and forbid our relatives to visit us”, yet would not have thought (at some stage prior to the Tribunal hearing), to mention that as a result of her mistreatment while in detention in or after January 2001, she was hit in the head and her memory was impaired. I am therefore satisfied this was a recent invention submitted by the applicant in an effort to falsely justify omissions in her evidence. This was one of the reasons that eventually led me to conclude the applicant was prepared to embellish or fabricate her evidence in order to enhance her claim to invoke refugee protection obligations in Australia. The extent to which this (and other matters) caused me to make adverse credibility findings I have set out below.
The applicant also gave evidence of harassment of her husband by PRC officials. In this regard the Tribunal said this:
When asked why her husband did not retain custody of the two children (given she was allegedly in hiding and on the run from the PRC authorities), the applicant claimed her husband did not want to be harassed by the police who continued to question him about her whereabouts. I then asked the applicant why she had not sought to make this claim (about her husband continuing to be harassed) previously. The applicant claimed “no-one asked” her. I put to her that if her husband had continued to be harassed by the local police seeking her whereabouts, I would ordinarily anticipate this may have been considered important to put to a decision maker (even before the Tribunal hearing). The applicant again claimed she had a “bad memory”. She also repeated she did not know who to make the claim to. I then again put to her that she had provided a 4 ½ page typed statement and had been advised on the Protection Visa application form to provide all her claims in writing. (CB 96-97)
In its findings and reasons at CB 97, the Tribunal said;
… I do not accept she would not have understood that evidence the PRC authorities continued to seek her whereabouts (by harassing her husband) would not have been relevant to her case. I am satisfied that if she believed she was compelled to utilise bribery in order to depart the PRC, she would have understood that any claim relating to her husband continuing to be harassed by the PRC authorities would have been relevant to her case. I therefore reject her claim that after she allegedly fled her home in September 2001, her husband continued to be harassed by the PRC authorities seeking her whereabouts. I am satisfied this was a recent invention submitted solely to enhance her claim to invoke refugee protection obligations in Australia.
…I am not satisfied the applicant’s husband was harassed by the PRC authorities as she claimed.
Section 424A provides:
424A Applicant must be given certain information
(1) Subject to subsection (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 a 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.
(2) …
(3) This section does not apply to information:
(a)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; or
(b)that the applicant gave for the purpose of the application; or
(c)that is non‑disclosable information.
Therefore, three issues arise for consideration:
a)is there any “information” for the purposes of s.424A(1)(a);
b)if so, can that “information” be said to be information which was the reason or part of the reason for the Tribunal affirming the decision of the Minister’s delegate;
c)did the applicant give the information to the Tribunal for the purposes of the application there so that the exception on s.424A(3)(b) applies to it: see SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200 per Allsop J at [18].
In relation to (a),
… the word “information” in s.424A(1) has the same meaning as in s.424: Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 at [20]; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win, at [19] – [22]
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at 477 [24].
In the context of these proceedings, there are two items of s.424A “information”. Both turn on the fact that the applicant gave evidence on two matters at the Tribunal having not said anything about these matters in the material she had supplied to the department:
a)the first being that she had suffered a memory-affecting head injury; and
b)the second being that her husband was being harassed by PRC officials seeking the applicant’s whereabouts.
As Allsop J said in SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200 at [30]:
To say that there is no information here because the statement (which is information) lacked the aspect now being adduced would be to fail to recognize that the information that is central to the reason for the decision is that the appellant said so much and no more on an earlier occasion. That is the relevant information.
In SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 at 263 [223], his Honour also said:
Where there are things such as a prior statement or a visa application form, the information for the purposes of s.424A will be that a document in that form was provided. That information may have relevance to the Tribunal for all sorts of reasons. Such relevance is not limited to whether the information leads to a positive factual finding based on its terms. It may be relevant because it plays some part (as here) in the conclusion as to the truthfulness of the applicant.
As Weinberg J noted in NBKS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 174 at [36], in SZGGT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 435, Rares J agreed with the reasoning of Allsop J in SZECF and SZEEU saying at [72]:
The later provision of some material fact to support a claim is often, if not usually, able to be characterized as an ‘omission’ from the initial claim only because the initial claim conveys a representation, by implication or inference, that it is itself a complete account. And, in such a case it will be that latter representation which, in my opinion, is ‘information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision which is under review’ within the meaning of s.424A(1)(a).
In my view there is “information” for the purposes of s.424A(1). Relevantly, that information is the fact that the pre-Tribunal material did not contain a mention of the applicant’s memory-affecting head injury or of the harassment of her husband.
As to (b), the passages from the Tribunal’s decision quoted above demonstrate that the relevant discrepancies between the applicant’s claim to the department and her oral evidence to the Tribunal, namely the absence from the earlier material of any information concerning the memory-affecting head injury and the harassment of her husband, were two of the Tribunal’s reasons for making adverse credibility findings. Such findings led the Tribunal to conclude that the applicant was not a witness of truth such that it was satisfied that there were reasonable grounds to reject all her material claims. (CB 98.5)
Therefore, unless s.424A(3)(b) applies, the Tribunal should have invited the applicant’s comments on her earlier silence on these matters in accordance with s.424A(1), which it did not do.
As to (c) and the question of whether s.424A(3)(b) applies, the Minister submits that the two items of information are covered by s.424A(3)(b) because at the Tribunal hearing the applicant gave evidence that she omitted the information from prior documents. In the transcript the following passages appear:
[Q]:Okay and have you mentioned in your Refugee Application before have you have mentioned your memory has been affected by the way you were treated while you were in detention.
[A]: No I didn’t mention it. ….(page 6)
…
[Q]You have just told me that the, that your children did not live with your husband after your divorce in July 2005. You said this was because he did not want the police to continue to harass him seeking your whereabouts. Is that correct? Yes.
[A]:Yes.
[Q]Okay. Why did you not mention this claim before just now?
[A]:to home, I don’t understand
[Q]This is the first time you have mentioned your husband was harassed by the police.
[A]:Yes, you didn’t ask me, because I didn’t tell you
…
[Q]:But on your protection visa your written protection visa to the Department, you are asked to give all your claims to the Department for its consideration. I am therefore surprised that you would not have thought to mention that earlier.
[A]:Member, you already know that I don’t have a good memory and sometimes I forgot and other time I just forgot about that, that is why I didn’t include this in my application. (pages 21 – 22).
The relevant passages from the transcript indicate that, until the applicant mentioned it, the Tribunal was unaware of the omission concerning the memory-affecting head injury. The information concerning the omission came to the Tribunal’s notice because the applicant gave it that information. For that reason this information fell within the exception contained in s.424A(3)(b) and did not have to be given to the applicant by the Tribunal.
However, the information concerning the omission of the harassment is different. This information did not come to the Tribunal’s notice because the applicant gave it that information but, rather, arose in the evidence because the Tribunal put the issue to the applicant from information which it could only have gleaned from sources other than material given by the applicant to the Tribunal. I will describe such sources as “pre-Tribunal material”. These facts have similarities with the facts in NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744 where Jacobson J rejected an argument that s.424A(3)(b) applied noting at [39] and [40] that:
In my view it cannot be said that the appellant himself provided the information in the protection visa to the RRT as part of his application. The passage set out at [11] indicates that the RRT raised the issue of the protection visa application form and the answers contained in it during questions asked of the applicant in the course of the hearing. The RRT then put the inconsistency in the information to the appellant as a possible basis for a finding that the claim had been fabricated …
It follows in my opinion that the exception contained in s.424A(3)(b) was not enlivened.
However, the Minster submitted that a contrary conclusion is to drawn from the reasons for judgment of Moore J, with whom Weinberg and Allsop JJ agreed, in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 where his Honour said at 242 [91]
While it appears that the Tribunal originally came to know that the appellant entered Australia on a business visa from sources other than the appellant (an inference which could be drawn from the way the letter of 4 February 2004 was framed) it is tolerably clear from the Tribunal's reasons that it discussed this fact (that the appellant had entered Australia on a business visa) with the appellant and he affirmed he had. Thus it was information comprehended by s.424A(3)(b) even though it was information also derived from an alternative source.
Certainly Kenny J in SZDPY v Minister for Immigration & Multicultural Affairs [2006] FCA 627 at [35] said that the quoted passage from Moore J’s judgment
… provides support for the proposition that where an applicant affirms a specific fact before the Tribunal that information will be covered by the exclusion in s.424A(3)(b).
In SZHFC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1359, the reasons for judgment of Allsop J at [21] to [26] show that there is more to the question than Kenny J’s comment in SZDPY might suggest. His Honour’s judgment emphasises the need to identify which information is relied upon by the Tribunal, noting that even in circumstances where pre-Tribunal facts are confirmed in evidence at the Tribunal and, thereby, are information for the purposes of s.424A(3)(b), the context or circumstances in which they were originally given may be the information upon which the Tribunal has relied, not merely the facts themselves.
In SZHFC the Tribunal considered information contained in the protection visa application which was also given in oral evidence at the hearing before the Tribunal. After making reference to what was said by Heerey J in VWBF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 851, Allsop J said:
If the Tribunal, as here, puts an earlier statement or application to the applicant and asks questions about it, it does not seem to me capable of being denied that the answers given to those questions will be information for the purposes of s.424A(3)(b). If the Tribunal then takes that information, that is, for want of a better expression, that raw information or data into account, nothing would prevent the operation of s.424A(3)(b). If, however, the importance placed by the Tribunal on the information previously given to the Department (which may have been repeated in answers to the Tribunal) is not merely the facts disclosed, but arises from the context or circumstances of it being given earlier, then s.424A(3)(b) may not prevent the requirement of a notice under s.424A(1) and (2). … The question is, what is the information. In other words, if facts are given to the Tribunal in answers, they are information falling within s.424A(3)(b). That section is not limited to volunteered or unprompted information. [24]
In this case it was the omission of the harassment allegation from the pre-Tribunal material which was considered important by the Tribunal. The Tribunal asked questions about it and the applicant gave answers. Included in the information contained in those answers was the concession that she had not mentioned the harassment previously. This information, originally deduced by the Tribunal but then given in the applicant’s answers at the hearing, became information given to the Tribunal as comprehended by s.424A(3)(b) with the consequence that there was no breach of s.424A by the Tribunal.
The Tribunal’s decision was infected with jurisdictional error
This ground is not particularised and seems to have been included as a generic assertion. In the circumstances, it does not have any basis independent of the other grounds contained in the amended application.
The Minister’s department abused its power
These proceedings are for a review of the decision of the Tribunal, they are not a review of the underlying decision of the delegate of the Minister or of the Minister’s department more generally. But in any case, this serious ground of complaint was not raised before the Tribunal, either in the application or at the hearing and no evidence has been advanced in support of it. Accordingly, the Tribunal has not erred by not considering the issue.
The interpreter at the Tribunal hearing misrepresented the applicant’s oral evidence
In her response to the Tribunal’s hearing invitation, the applicant indicated that she required a Mandarin interpreter (CB 75). The “RRT Hearing Record” indicates that the interpreter who attended was accredited to NAATI level 3. The first page of the transcript of the Tribunal hearing records that the applicant was not acquainted with the interpreter and had no problem with using the interpreter.
No evidence has been advanced in support of this ground that the interpreter was “not friendly” to the applicant and misrepresented her oral evidence. In the absence of expert interpreter evidence to impugn the accuracy of the translation provided at the Tribunal hearing there is no basis to conclude that it was deficient.
Conclusion
For the above reasons the application will be dismissed.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate: Parisra Thongsiri
Date: 19 December 2006
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