SZJGE v Minister for Immigration and Anor

[2006] FMCA 1845

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJGE v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1845

MIGRATION – Visa – protection (class XA) visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa –applicant a citizen of China claiming fear of persecution as a Falun Gong practitioner – credibility of applicant’s evidence – applicant found by Tribunal not to be a credible witness – whether Tribunal breached Migration Act 1958 s.424A – whether Tribunal breached Migration Act 1958 s.425 – no reviewable error.

PRACTICE & PROCEDURE – Constitution of Tribunal – Tribunal differently constituted – undesirable to seek order for application to be reheard by Tribunal “differently constituted” – constitution of Tribunal a matter for Principal Member.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.424A, 425

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 followed

Applicant: SZJGE

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 2320 of 2006

Judgment of: Scarlett FM

Hearing date: 11 December 2006

Date of last submission: 11 December 2006

Delivered at: Sydney

Delivered on: 11 December 2006

REPRESENTATION

Applicant: In Person

Counsel for the Respondent: Mr Wigney

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.

2. The Application is dismissed.

3. The Applicant is to pay the First Respondent's costs fixed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2320 of 2006

SZJGE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. The Applicant in the proceeding before me today seeks orders setting aside a decision made by the Refugee Review Tribunal. The Tribunal signed its decision on 21^st June, and handed that decision down on

   
   

   13^th July 2006.  The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a protection visa. 

2. The Applicant asks the Court to make a declaration that the Tribunal decision was made in error of jurisdiction and is therefore null and void.  He also seeks an order in the nature of certiorari setting the Tribunal decision aside, and an order in the nature of mandamus remitting the application to a differently constituted Tribunal to be re-heard according to law.

3. I will make it clear at this stage that I do not consider it appropriate for the Court to make any order requiring the Tribunal to be differently constituted even if I were satisfied that the application should be remitted to the Tribunal for hearing. 

4. The constitution of the Refugee Review Tribunal to hear a particular application is a matter that is entirely within the discretion of the Principal Member of the Refugee Review Tribunal.  It is not a matter for the Court, and in any event, the application does not set out any reason why any Tribunal should be differently constituted. It is an order that is commonly sought in applications before this Court, but it is a practice which to my mind ought to be discouraged.   

Background

1. The background to this matter is that the Applicant is a citizen of the People's Republic of China.  He arrived in Australia on 24^th September 2005, and applied for a Protection (Class XA) visa on 7^th November 2005. On 18^th January 2006 a delegate of the Minister refused the application for the grant of a visa. 

2. On 27^th February 2006 the Applicant applied to the Refugee Review Tribunal for a review of that decision. The application did not include any additional information. 

3. The Tribunal wrote to the Applicant on 21^st March 2006.  The letter told him that the Tribunal had considered the material before it in relation to his application, but was unable to make a decision in his favour on that information alone.  Accordingly, the Tribunal invited the Applicant to attend a hearing to take place on Friday 21^st April 2006. 

4. The Applicant sent in a Response to the Hearing Invitation indicating that he wanted to attend the hearing and required the assistance of a Mandarin interpreter. The Applicant attended the hearing and gave evidence.

5. The Applicant told the Tribunal that he believed that he would be persecuted if he were to return to China because he was a Falun Gong practitioner. He told the Tribunal that some of his friends who had practised Falun Gong for health reasons had come under notice from the police. The Tribunal asked the Applicant about his practice of Falun Gong, and he told the Tribunal that he did so to improve his health.

6. The Tribunal asked the Applicant about the spiritual side of the Falun Gong practice, and the Applicant said that on Friday evenings he went to Parramatta where he read books in company with other people. 

   
   

   He said that he had not done the Falun Gong exercises in Australia, but he just read the books.

The Tribunal’s Findings and Reasons

1. The Tribunal considered all of the material in its decision record, which is set out at pages 59 through to 70 of the Court Book.  In making its decision the Tribunal referred to independent evidence, which is set out on pages 66 through to 68 of the Court Book.

2. The Tribunal's findings and reasons are set out on pages 68 and 69.  The Tribunal found that the Applicant was a national of China, based on the evidence of his passport. Unfortunately, the Tribunal did not find the Applicant to be a credible witness.  Indeed, the Tribunal described the Applicant as a "thoroughly unconvincing witness" at page 68 of the Court Book. 

3. The Tribunal went on to say that the Applicant's oral evidence was often delivered in a diffident manner, and he often had to be asked simple questions more than once before he answered them. The Tribunal noted that when the Applicant finally did answer, his responses were often extremely vague. 

4. The Tribunal set out other reasons why it concluded that the Applicant was not a credible witness. First, it said that there were instances where the Applicant's failure to respond to simple questions seemed to be deliberate. Second, the Tribunal said that the Applicant lacked knowledge about the practice of Falun Gong and his evidence about the Falun Gong exercises, and his Falun Gong activities in China was confused and changed.  Third, the Tribunal said that the Applicant's oral evidence about his Falun Gong practice in Australia was also confused and contradictory. 

5. When the Tribunal asked him whether or not he practised the Falun Gong exercises the Tribunal noted that the Applicant said that he went to Parramatta, sat outside the Council and did not practice the exercises.  The Tribunal noted then that the Applicant contradicted this when he later told the Tribunal that he performed three sets of exercises sitting down in Parramatta. 

6. The Tribunal had this comment to make at page 69 of the Court Book:

   It seemed to the Tribunal that the applicant was paying little attention to what he was saying, and replied to the Tribunal's questions according to whatever came into his mind at the time rather than according to his actual personal experience.  

   The Tribunal has concluded that the applicant was not a credible witness and finds that he was not a Falun Gong practitioner in China, has not practised Falun Gong or engaged in any Falun Gong activities in Australia and has not engaged in any other ‘anti-party’ activities in China or Australia. Nor does the Tribunal accept that a friend in China told the authorities that the Applicant is a Falun Gong practitioner or that the authorities found Falun Gong books at the applicant's home.

7. The Tribunal found that the Applicant did not have a well-founded fear of persecution in China for a Convention reason, and found that the Applicant did not satisfy the criterion set out in sub-s.36(2) of the Migration Act for a protection visa.

The Application for Judicial Review

1. The Applicant sought a review of the Tribunal's decision by means of an application and a supporting affidavit filed on 21^st August 2006. The application claims that the Tribunal failed to carry out its statutory duty, and sets out particulars alleging a failure to comply with s.424A of the Migration Act.

2. Ground 2 is an elaboration of the claim that the Tribunal did not comply with s.424A of the Migration Act. Grounds 3 and 4 have been summarised by counsel for the First Respondent, Mr Wigney, as a claim that the Tribunal failed to explain the relevance of independent country information.

3. Ground 5 claims a failure by the Tribunal to observe its obligations under s.425 of the Migration Act because the Applicant was often interrupted by the Member and by the interpreter. As a result, he claims he often “lost his thoughts and flow of thinking” due to those interruptions and restrictions.

4. Grounds 6 and 7 are no more than factual contentions. Ground 6 contains an explanation as to why the Applicant did not file a further submission after the Tribunal hearing, and Ground 7 reasserts his claim that he suffered persecution in China, and complains that several of his friends in a similar situation to his had been granted protection visas in Australia.

5. Neither Ground 6 nor Ground 7 contains grounds of review, and I would comment that each application for a protection visa is considered by the Tribunal on its own particular facts. It is irrelevant that other people have applied for protection visas on the grounds that they are Falun Gong practitioners and they have been successful.

6. Thus, there are, as counsel for the First Respondent submitted, three contentions of law: (1) the alleged failure to comply with s.424A of the Migration Act; (2) the complaint about the relevance of independent country information; and (3) the alleged failure to comply with s.425 of the Migration Act.

Ground 1 – Breach of s.424A

1. As to the first ground, the Applicant submits that the Tribunal's duty under s.424A arises at the time which the Tribunal receives information which would be the reason or part of the reason for affirming the decision under review. He claims that the Tribunal had that information at some prior to the date of decision because the Tribunal wrote to the Applicant saying:

   The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.

2. The application goes on to claim that the information before the Tribunal was that the Tribunal had before it the Departmental file, which included the protection visa application and the delegate's decision record. The Tribunal also has had regard to the material contained in the Tribunal file, including the application for review.

3. The Applicant claims that the Tribunal had information caught by s.424A and failed to give particulars of that information to the Applicant, explained why it was relevant, and give the Applicant an opportunity to comment upon it.

4. The Applicant claims that the Tribunal should have included particulars of the information and explanation in its letter, and that a failure to do so is a jurisdictional error. This submission is misconceived. It is well-established by decisions of this Court and the Federal Court that the obligation under s.424A of the Migration Act does not arise at the time that the Tribunal is considering its obligation under s.425 of the Act.

5. The submission misconceives both s.424A and s.425. Section 424A(1) provides that the Tribunal must 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. The misconception here is a fundamental one because at the time that the Tribunal is considering its obligation under s.425 it is not considering whether or not it should affirm the decision that is under review. The submission misconceives the effect of s.425 of the Act.

6. Section 425 requires the Tribunal to invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising unless the Tribunal considers that it should decide the review in the Applicant's favour on the basis of the material before it, or the Applicant consents to the Tribunal deciding the review without the Applicant appearing before it, or sub-s.424C(1) or (2) applies to the Applicant.

7. The test under s.425 of the Migration Act that the Tribunal must undergo is whether or not it should decide the review in the Applicant's favour on the basis of the material before it, or there has been a consent, or sub-s.424C(1) or (2) apply.

8. If the Tribunal considers that it should decide the review in the Applicant's favour on the basis of the material before it then it must do so, and the Applicant is not entitled to appear before the Tribunal. If the Tribunal does not consider that it should decide the review in the applicant's favour on the basis of the material before it the Tribunal is then obliged to invite the Applicant to appear. 

9. The Tribunal does not have the power to affirm the delegate's decision under s.425 of the Act. The Tribunal either decides that it can decide the review in the Applicant's favour, or it holds a hearing. In those circumstances, it is not until the hearing has been held that the Tribunal is empowered to affirm the delegate's decision, or it may, on the basis of the Applicant's evidence, again decide the review in the Applicant's favour. Until it has held the hearing under s.425, or complied with its obligation to invite the applicant to a hearing under s.425, s.424A of the Migration Act does not apply.

10. The Tribunal did not affirm the delegate's decision until after it had held the hearing and heard the Applicant's evidence. It is quite clear from the Tribunal decision that the reason why the Tribunal affirmed the decision of the delegate was that it was not satisfied that the Applicant was a credible witness; quite the reverse in fact. 

11. Section 424A was not breached at that stage, either, because it is clear from the Tribunal decision that the adverse finding as to credibility arose from the Applicant's own evidence. The Applicant's own evidence to the Tribunal is information that the Applicant gave for the purpose of the application, and is therefore covered by the exception in sub-s.424A(3)(b) of the Migration Act.

12. Obviously, the first ground fails.

Ground 2 – Independent Country Information

1. The second ground relates to independent country information.

   
   

   As counsel for the First Respondent has pointed out, the Applicant provides no detail of the independent country information that was not brought to his attention or explained to him, nor does he explain how that this would amount to jurisdictional error.  

2. The Tribunal most certainly referred to independent country information, to which I referred earlier, but it is clearly information that was not specifically about the applicant or another person and was just about a class of persons of which the Applicant or other person was a member, or claimed to be a member. 

3. The independent country information is information that falls within the provisions of sub-s.424A(3)(a), and there is no breach of

   
   

   sub-s.424A(1). In any event, it was not the independent country information that was the reason or part of the reason for affirming the delegate's decision, it was the Applicant's lack of credibility as found by the Tribunal.

4. It is well-established by decisions such as Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 that credibility is a matter for the Tribunal, and so long as there is evidence upon which a credibility finding can be made it is not open to a Court conducting judicial review to interfere.

Ground 3 – Section 425 of the Act

1. The third claim relates to an alleged breach of s.425 of the Act in failure to provide a proper hearing. There is clearly no breach of s.425 insofar as inviting the Applicant to a hearing is concerned because the Tribunal invited the Applicant to a hearing and gave him a calendar month's notice from the date of the letter, and provided a Mandarin interpreter for the hearing.

2. The Applicant attended the hearing and gave oral evidence. There is no evidence by way of affidavit or transcript to show that through interruptions by either the Tribunal Member or the interpreter or both that the Applicant was unable to give the evidence or present arguments that he was entitled to do under s.425. There is nothing in the Tribunal decision to show that the Applicant did not have an adequate opportunity to present his case, and indeed the Applicant, from his own application, was aware of the fact that he could have submitted a post-hearing submission, but he elected not to do so. There is no breach of s.425 of the Migration Act.

Conclusion

1. The Applicant is not legally represented, although he did have advice from a barrister involved in the Refugee Review Tribunal Legal Advice Scheme. I have read through the Tribunal decision myself, and I am unable to discern any jurisdictional error not raised by the Applicant or referred to by the lawyers for the Minister.

2. There is no jurisdictional error. The Tribunal decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. Accordingly, it is not subject to the declaration or orders in the nature of certiorari or mandamus that the Applicant seeks.

3. The application will be dismissed with costs. The Applicant has been wholly unsuccessful in his claim.  I propose to make an order that he should pay the Minister's legal costs in the sum of $4,500.00.

   
   

   I consider that to be an appropriate amount. 

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  13 December 2006