SZJEH v Minister for Immigration - [2007] FMCA 1096

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJEH v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1096

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424; 424A; 424A(1); 424A(3)(b); 474; pt.8 div.2

Applicant:

SZJEH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG823 of 2007

Judgment of:

Emmett FM

Hearing date:

11 July 2007

Date of last submission:

11 July 2007

Delivered at:

Sydney

Delivered on:

11 July 2007

REPRESENTATION

Applicant appeared on his own behalf

Counsel for the Respondent:

Mr M. Godwin

Solicitors for the Respondent:

Mr G. Johnson, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG823 of 2007

SZJEH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 8 February 2007 and handed down on 13 February 2007.
The Applicant was born on 20 November 1971 and claims to be from China and of Han ethnicity (“the Applicant”).
On 18 February 1999 the Applicant arrived in Australia, having legally departed from Shanghai International Airport on a passport issued in his own name and a visitor visa issued on 11 February 1999.
On 1 March 1999, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs under the Act.
In support of his protection visa application, the Applicant claimed that he had been an employee in a factory in China and that in 1993 there was a serious incident in the factory resulting in the death and injury of several workers. The Applicant claimed that those responsible for the death and injuries were not punished and that the Applicant participated in protests against the authorities of the factory. As a result, the Applicant claimed that he was arrested and detained for 15 days and forced to make confessions. After his release, the Applicant claimed that in October 1993 he and five others established an underground workers union. The Applicant claimed that in November 1993 the authorities “declared that our union should be dismissed”. The Applicant claimed that he sought to have the union registered, however such application was refused in January 1994 and was denounced as stirring up anti-government activities. The Applicant claimed that following a protest in January 1994 in the major street of Zhijiang city, the Applicant was again arrested and detained for several months, during which he was mistreated and dismissed from the factory. The Applicant claimed that, in May 1997 he set up another underground union at Zhijiang city which also published a monthly magazine. The Applicant claimed that when his union came to the attention of the government at the end of 1998, many members of the union were arrested and the union was “totally destroyed”. The Applicant then left for Australia as he feared persecution in China by the authorities arising out of his underground union activities.
On 19 March 1999, a delegate of the First Respondent refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 12 April 1999, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal. On 24 August 1999, the Refugee Review Tribunal, differently constituted, affirmed the decision of the Delegate not to grant a protection visa.
The Applicant filed an application for judicial review in this Court of the decision of the Delegate’s dated 12 April 1999. By consent, on 8 November 2006 Federal Magistrate McInnis ordered that the matter be remitted to the Refugee Review Tribunal for determination according to law.
On 8 February 2007, the Refugee Review Tribunal (“the Tribunal”) affirmed the decision of the Delegate not to grant a protection visa.
On 12 March 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

The Tribunal proceeding

On 21 December 2006 the Tribunal invited the Applicant to come to a hearing on 22 January 2007.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources as well as the application for review.
The Applicant gave oral evidence before the Tribunal.
The Tribunal identified with particularity the claims made by the Applicant in support of his protection visa application dated 1 March 1999. The Tribunal noted that a statement lodged by the Applicant on 12 April 1999 in support of his application for review by the Refugee Review Tribunal repeated these claims.
The Tribunal noted the oral evidence given by the Applicant to the earlier constituted Refugee Review Tribunal on 28 July 1999 and cited the earlier constituted Refugee Review Tribunal’s summary of the hearing. That summary disclosed the concern that the Tribunal had about the differences in evidence given by the Applicant to the earlier constituted Refugee Review Tribunal from claims made in support of his protection visa application.
The Tribunal then noted that it wrote to the Applicant on 22 December 2006 pursuant to s.424 of the Act in which it sought additional information and requested the Applicant to provide any further documents he wished to submit in support of his case.
The Tribunal sent a further letter dated 22 December 2006 purportedly in compliance with s.424A(1) of the Act in which the Tribunal identified and invited the Applicant to comment upon inconsistencies between the Applicant’s primary application and the evidence given by the Applicant to the earlier constituted Refugee Review Tribunal.
The Tribunal then noted in terms the Applicant’s statutory declaration dated 5 January 2007 sent to the Tribunal in response to its purported s.424A(1) letter dated 22 December 2006.
The Tribunal then recorded with particularity the oral evidence given by the Applicant to the Tribunal on 22 January 2007.
In particular, the Tribunal noted that the Applicant claimed for the first time to have had a girlfriend who had sought to break up with him in July 1999 and that this was the reason why he was unable to present his case satisfactorily to the earlier constituted Refugee Review Tribunal. The Tribunal noted that it asked the Applicant that if he told the earlier constituted Refugee Review Tribunal of that matter and the Applicant responded he had not. The Tribunal noted that the Applicant claimed that he and his girlfriend reunited in 2004 after she had returned to Australia following some time in China and had a child in Australia. The Applicant stated that he sent the child back to China and that this decision caused the Applicant much distress.
The Tribunal explored with the Applicant whether his girlfriend had accompanied him to the hearing and noted the Applicant’s response that she had. The Tribunal noted that it asked the Applicant whether he wished his girlfriend to give evidence and noted that he said that he did. The Tribunal noted that the Applicant and a hearing attendant left the hearing room to find his girlfriend and when they returned the Applicant informed the Tribunal that his partner was not there and had possibly gone home.
Ultimately, the Tribunal rejected the Applicant’s claims of having a girlfriend in circumstances where he had made no prior reference to the existence of the girlfriend or the child, either orally to the earlier constituted Refugee Review Tribunal or in any written statement and where there was no other corroborative support. The Tribunal noted that it received, post-hearing, on 31 January 2007 a certified copy of the birth certificate of the Applicant’s son. However, the Tribunal noted that the mother’s name was a false name and according to the Applicant’s evidence her real name was different to that on the birth certificate.
The Tribunal noted that it listened to the tape recordings of the hearing before the earlier constituted Refugee Review Tribunal and was satisfied that the decision record of the earlier constituted Refugee Review Tribunal was “an adequate representation of what occurred”.
The Tribunal found that, having listened to the tapes, it could not identify any difficulties by the Applicant in presenting his evidence and noted that the earlier constituted Refugee Review Tribunal “painstakingly provided the Applicant with every opportunity to discuss his claims and to confirm his statements at the hearing.” Accordingly, the Tribunal rejected the Applicant’s complaint that he was “hindered in providing cogent evidence” to the earlier constituted Refugee Review Tribunal.
The Tribunal found that the Applicant’s girlfriend did not wish to give evidence at the second hearing as there was no evidence of her attendance at the hearing other than the uncorroborated assertion of the Applicant. From those matters the Tribunal inferred that the Applicant’s girlfriend’s evidence would not have supported his claims. The Tribunal also had regard to the fact that the Applicant had provided a statutory declaration to the Tribunal some days earlier in which he made no mention of the relationship with the girlfriend or the birth of a child who has returned to China. Accordingly, the Tribunal found that the Applicant manufactured those claims in order to enhance his claims for refugee status.
The Tribunal also had regard to the Applicant’s evidence that he took no steps to contact his agent between the hearing before the earlier constituted Refugee Review Tribunal and the filing of hi application to this Court for judicial review of that decision in 2006. The Tribunal found that conduct consistent with the Applicant’s knowledge that he was untruthful before the earlier constituted Refugee Review Tribunal.
The Tribunal also found that the Applicant’s conduct in applying for and obtaining a passport issued by the Consulate General of China in Sydney on 19 December 2005 as leading the Tribunal to find that the Applicant does not have a subjective fear of persecution in China.
Having regard to those findings, the Tribunal found the Applicant not to be a credible witness.
The Tribunal had regard to the Applicant’s response to its s.424A letter in which the Applicant acknowledged the inconsistencies in his evidence before the earlier constituted Refugee Review Tribunal.
The Tribunal concluded that “having regard to all the inconsistencies the Tribunal finds that the applicant’s evidence overall is not credible, and it rejects the applicant’s claims.”
The Tribunal was not satisfied, having considered the evidence as a whole, that the Applicant is a person to whom Australia has protection obligations under the Convention.

The proceeding before this Court

The Applicant was unrepresented before this Court although had the assistance of a Mandarin interpreter.
The Applicant confirmed that he relied upon the grounds in his amended application filed on 16 May 2007. Those grounds are as follows:
“1. the Tribunal failed to consider my evidences, properly and fairly.
2. the Tribunal failed to comply with its obligation under section 424A of the Act.
3. It is owing to failure to comply with its obligation under the section 424A(1) of the Act that the second Tribunal had exceeded its powers and thus commits a jurisdictional error because it has identified a wrong issue, asked a wrong question, ignored relevant material, relied on irrelevant material or, in some circumstances, made an erroneous finding or reached a mistake and conclusion in a way that affected the exercise or purported exercise of the Tribunal’s power.”

Ground 1

This ground was supported by particulars that essentially disagreed with the Tribunal’s finding that any difficulties experienced by the Applicant at the hearing before the earlier constituted Refugee Review Tribunal were not because of the break-up of his relationship with his girlfriend.
It is clear from the exposition in these Reasons of the Tribunal’s hearing that it considered very carefully the claims made by the Applicant. The Tribunal noted in its decision the exchanges it had with the Applicant about various aspects of his claims that caused it concern. It recounted in some detail the Applicant’s claim of his relationship with his girlfriend, his claim that they broke up around the time of the hearing before the earlier constituted Refugee Review Tribunal and his claim that their relationship recommenced in 2004 after she returned to Australia from China.
Further, the Tribunal put to the Applicant that it may draw an adverse inference by the failure of his girlfriend to attend. The Tribunal noted that the Applicant responded that his wife was outside the hearing room although he had not informed the attendant prior to the hearing that she was with him. The Tribunal noted that it asked the Applicant whether he wished his partner to give evidence and noted his response that he did. The Tribunal then noted that both the attendant and the Applicant left the hearing room to look for the girlfriend and when they both returned the Applicant stated that she was not there and had possibly gone home.
The Tribunal also noted that the Applicant had never mentioned either in oral evidence to the earlier constituted Refugee Review Tribunal, or in his recent statutory declaration to this Tribunal, or any other written statement, about his relationship with this girlfriend.
In particular, the Tribunal noted that in answering its s.424A letter the Applicant had given a detailed explanation about his nervousness, brainstorming and “huge mental and psychological pressure” that he said led to his confusion in the evidence given by him at the hearing of the earlier constituted Refugee Review Tribunal that gave rise to the inconsistencies in his evidence. There was no mention of his girlfriend in his statutory declaration dated 5 January 2007, being his response to the Tribunal’s s424A letter dated 22 December 2006.
The Tribunal also noted that it had listened to the tapes of the earlier constituted Refugee Review Tribunal and was unable to “identify any indication that the applicant had brainstorms or suffered in any other way in presenting his evidence at that hearing”.
The rejection by the Tribunal of the Applicant’s oral evidence to it that his difficulties at the hearing before the earlier constituted Refugee Review Tribunal arose from the breakdown of his relationship with his partner were findings of fact that were open to it on the evidence and material before it and for which it gave reasons.
Disagreement with findings of fact made by a Tribunal does not support the Applicant’s contention that the Tribunal failed to consider his evidence properly or fairly.
Accordingly, Ground 1 is rejected.

Ground 2

The particulars in support of this ground again appear to disagree with the Tribunal’s finding that there was no evidence that the Applicant’s partner attended the hearing and that when she was called and not sighted the Tribunal found that she did not wish to give evidence.
That is not information that enlivened the obligations of s.424A of the Act. The information that she had accompanied him to the hearing and the information that she had left the hearing and possibly gone home was information given to the Tribunal by the Applicant for the purposes of its review and is therefore information that is excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(b) of the Act.
To the extent that the Applicant complained to this Court that the Tribunal had failed to invite the Applicant’s wife to attend the hearing, there was no such obligation on the Tribunal. The application before the Refugee Review Tribunal was in the name only of the Applicant, as was his protection visa application.
Further, when the Tribunal was invited to come to a hearing before it by letter dated 21 December 2006 the Applicant returned the Response to Hearing Invitation form and did not indicate on that form that he wished the Tribunal to take oral evidence from any witness. Nor was any evidence from his alleged partner provided to the Tribunal prior to the hearing in response to the Tribunal’s request in its letter dated

21 December 2006 to send any further documents to the Tribunal that he wished the Tribunal to consider. Nor was any evidence from the girlfriend provided in response to the Tribunal’s s.424A letter dated

22 December 2006 in which it again asked the Applicant to provide any further documents he wished to submit in support of his case.
In the circumstances, there is no error on the part of the Tribunal in failing to obtain evidence from the Applicant’s alleged partner. Nor is there any breach of s.424A(1) of the Act arising out of the findings mad by the Tribunal in relation to the Applicant’s evidence about his relationship with his partner and her failure to attend the hearing.
To the extent that the Applicant also complains in the particulars in support of Ground 2 about the Tribunal’s finding that his son had not been sent back to China because the Applicant was unable to tell the Tribunal the name of the person who accompanied the child back to China, such a complaint is no more than a disagreement with the finding made by the Tribunal. That finding is a finding of fact that was open to the Tribunal on the evidence and material before it and for which it gave reasons.
Accordingly Ground 2 is not made out.

Ground 3

Ground 3 is no more than unparticularised assertions of error that are said to arise owing to the alleged failure by the Tribunal to comply with its obligations under s.424A(1) of the Act. As there was no failure by the Tribunal to comply with its obligations under s.424A(1) of the Act this ground is rejected (see above in these Reasons in consideration of Ground 2).
A fair reading of the Tribunal’s decision makes it clear that the Tribunal considered the evidence and material before it, identified the Applicant’s claims, set out findings that were open to it on the evidence and material before it on material questions of fact and the reasons for those findings. It complied with its statutory obligations in the making of its decision, including the conduct of its review.
Accordingly, Ground 3 is rejected.

Conclusion

The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 11 July 2007