SZJHP & Anor v Minister for Immigration
[2007] FMCA 1559
•17 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJHP & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1559 |
| MIGRATION – Review of the Refugee Review Tribunal – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 424A, 476 Federal Magistrates Court Rules 2001 (Cth), rr.44.11(c), 44.12 |
| Abebe v Commonwealth of Australia [1999] HCA 14 Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919 Minister for Immigration & Multicultural Affairs v Jia 205 CLR 507 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 SZDOY v Minister for Immigration & Multicultural Affairs [2006] FCA 627 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 SZHBC v Minister for Immigration & Anor [2007] FMCA 692 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 |
| Applicants: | SZJHP & SZJHQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2483 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 16 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 17 September 2007 |
REPRESENTATION
| Advocate for the Applicant: | Applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitors for the First Respondent: | Mr A Cox of DLA Phillips Fox |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration & Citizenship”.
The application filed on 5 September 2006 is dismissed.
The applicant is to pay the first respondent's costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2483 of 2006
| SZJDH & SZJHQ |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicants in these proceedings are not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) ("the Act") and have been given the pseudonyms “SZJHP” (applicant husband), “SZJHQ” (applicant wife).
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Act filed in the Sydney registry of the Federal Magistrates Court of Australia on 5 September 2006 for judicial review of the decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal decision was signed on 18 July 2006 and the notification letter of the decision was sent on 8 August 2006 affirming a decision of the delegate of the first respondent made on 27 March 2006, refusing to grant the application a Protection (Class XA) visa. The applicants seek relief in the form of constitutional writs against the decision of the Tribunal.
The applicants seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Act. Pursuant to r.44.11(c) of the Federal Magistrates Court Rules 2001 (Cth), I dispensed with a hearing under r.44.12 and set the matter down for final hearing.
A Court Book ("CB") prepared by the first respondent’s solicitors was filed and served on 25 October 2006. I have marked it Exhibit "A" and it was read into evidence.
Background
The Tribunal decision of J Cipolla, reference 060360956, provides the following background information:
The applicant, who claims to be a citizen of the People's Republic of China and formerly a resident of the People's Republic of China, arrived in Australia on 20 December 2005. On 30 January 2006 he lodged an application for a protection (class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Migration Act.
On 27 March 2006 a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs refused to grant a protection visa and on 19 April 2006 the applicant applied for review of that decision.(CB 87)
The applicant husband’s claims are repeated in the Tribunal decision under the subheading "Claims and Evidence":
… I was a former farmer's union member and I was seriously persecuted by the Chinese authorities because of my fight for farmers' living rights. I found my family and I were threatened in China and cannot live there any more. I had to escape from my home country with my wife and seek aid from foreign authority.
I have been a farmer since I graduated Baya Middle School in 1980. From then to 2004 I worked diligently and tried to improve the economic level of my family. While the economy reform commenced in China, I signed a contract with the Shapu Town Local Government to cultivate the fruit and to do the fish farming in 1992, which guaranteed I can have 15 years using the [right] of this land. I made all my effort to work for my land, and my land offered me a high economic return in the following years. At that time I used to think I was happiest in the world when seeing my fish pond, fruit trees, cute children and virtuous wife.
However, all the perfect living was terminated at the beginning of 2004. In January 2004 I was informed that the land, the fish pond and cultivating fruit in the contract would be withdrawn due to the construction of a branch motorway of the Fu Quan Highway. And a lot of the farmers holding the land contract with the government had to face the same situation. In our opinion, if the local government gave us compensation reasonably and legitimately, according to the Compensation Standards of the People's Republic of China Land Management Means "including the land compensation, placement subsidy and shoots compensation", we should have support of a highway construction without complaint, considering its permanent benefit for the local development. But the unexpected fact was the Shapu Town Government really paid RMB2.136 Yuan per cubic metre, which equalled RMB1000 Yuan per Chinese acre, and without any land compensation, placement subsidy and shoots compensation. As we all know, early this year, the similar fish pond market price had already approached RMB20,000 Y per Chinese acre.(CB 89-90)
The written submissions prepared by Mr Cox, for the first respondent, contains a convenient summary of the Tribunal's decision. I adopt paragraphs 7 and 8 of those submissions:
(7) The RRT did not accept that the applicant was arrested as a result of his or other farmers lodging a complaint about corruption. It did not accept that Falun Gong literature was found in his home, and that he had left China because of persecution he claimed to face. The reason the RRT rejected these claims was because it did not find the applicant to be a credible witness:
(7.1) The applicant's claims of persecution was not consistent with his ability to freely and legally depart the country in December 2005.
(7.2) The applicant claimed he had lodged his complaint in July 2004 but claimed the authorities did not take any action against him until September 2004. The RRT did not find it plausible that the authorities would wait three months to do anything.
(7.3) The applicant's claims to have been detained for three months and then released was implausible.
(7.4) The applicant resided in China for 12 months prior to his departure without incident.
(8) The RRT did not accept, based on the applicant's concession at the hearing, that he had any more than a remote familiarity with Falun Gong. It found that he had fabricated this aspect of his claim.
Application for Review of the Tribunal's Decision
On 5 September 2006, the applicants filed an application for review under s.39B of the Judiciary Act. At the first Court date, the applicant husband indicated that he wished to participate in the Court’s free legal advice scheme. In accordance with orders made on that date, the applicants filed an amended application on 23 November 2006 setting out the following grounds:
(1) The Tribunal failed to carry out its statutory duty.
Particulars
(a) The only information before the Tribunal was that contained in the first respondent's file and that given to the Tribunal by the applicant.
(b) The Tribunal was requested to provide particulars of the information that was the reason, or part of the reason for affirming the decision. Migration Act 1958 s.424A. The Tribunal also was required to explain why the information was relevant and provided the applicant with an opportunity to comment upon it.
(c) The above particulars had to be provided in writing. SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) HCA 24 per McHugh J at [68] and [77] and Hayne J at [180] and [218]. (extracts not reproduced)
(d) The information to be given extends to that information given by the applicant to the first respondent as part of his application for a visa. Minister for Immigration & Multicultural Affairs v Al Shamry (2002) 110 FCR 27 at [17]. (extracts not reproduced)
(e) The Tribunal based its findings on the information, or lack of information, contained in the applicant's application for a visa and was required, by s.424A, to give particulars of the information, explain why the information is relevant and provide the applicant with an opportunity to comment upon it. The Tribunal's failure to so act was a jurisdictional error.
(2) The Tribunal relied upon irrelevant material. The "country information" relied upon by the Tribunal was out of date and/or based on hearsay.
(3) The Tribunal had biased against me and failed to consider my claim according to s.91R of the Migration Act 1958.
Submissions and Reasons
The applicant husband is a self-represented litigant who appears with assistance of a Mandarin interpreter. The applicant husband advised the Court that his wife, although named as an applicant in these proceedings, does not have claims apart from his. He appeared at the hearing on her behalf. The applicant husband confirmed that they had filed an amended application but had not prepared any written submissions. When invited to make any oral submissions in support of his application, he indicated that he would rely upon the amended application.
I note that the contents of the amended application are similar to those that appear in a number of other applications to this Court. I have made particular reference to this formulaic application in SZHBC v Minister for Immigration & Anor [2007] FMCA 692 at [12]. The amended application refers explicitly to s.424A of the Act but does not refer to the information said to constitute a breach of that section. The amended application also contains extracts from Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919 and SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 does not explain the relevance of those decisions to the alleged breach. This formulaic approach bears little relationship to the actual Tribunal decision and this particular application.
Mr Cox prepared written submissions addressing each of the issues raised by the applicants in the amended application. In respect of the ground claiming a breach of s.424A, Mr Cox submits that while the Tribunal may have referred to the applicant's protection visa application, its findings were based on a perceived inadequacy of the applicant's oral evidence. He submits that the result of SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 is that s.424A could not apply in a case such as this. The argument that s.424A is engaged by statements which point to inconsistencies in the applicant's oral evidence is now untenable. SZBYR concluded that s.424A would have an "anomalous temporal operation" if it was construed as applying after the Tribunal hearing: at [19].
SZBYR at [19] states:
Fourthly, and regardless of matters discussed above, the applicant's argument suggested that s.424A was engaged by any material which contained or tended to reveal inconsistency in the applicant's evidence. Such an argument gives s.424A an anomalous temporal operation. While the Act provides for procedures to be followed regarding issue of a notice pursuant to s.424A before a hearing, no such procedure exists for the invocation of that section after the hearing. However, if the applicant be correct, it was only after hearing that the Tribunal could have provided any written notice of the relevant passage in the statutory declaration from which the inconsistency which was said to arise, as those inconsistencies could not have arisen unless and until the applicant gave oral evidence. If the purpose of s.424A was to secure a fair hearing of the applicant's case, it seems odd that its effect would be to preclude the Tribunal from dealing with such matters during the hearing itself.
Mr Cox submits that even without considering the impact of SZBYR, information of this nature is exempt from disclosure under s.424A(3)(b), as it was information given by the applicant for the purposes of the review. In SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2, the Tribunal became aware from other sources that the applicant had applied for a business visa to come to Australia. Nevertheless, the Full Court concluded that this had been discussed with the applicant at the Tribunal hearing, resulting in the information having been provided for the purposes of the application: SZEEU at [91], [173] and [264]. In SZDOY v Minister for Immigration & Multicultural Affairs [2006] FCA 627 the Tribunal relied upon the applicant's educational and employment history to conclude that he could relocate. Justice Kenny concluded that this information was provided by the applicant at the Tribunal hearing: SZDOY at [35]. Further, that the applicant did not merely adopt the contents of the visa application information as a whole. but "separately and specifically gave detailed information concerning his education and employment to the Tribunal": SZDOY at [36].
Mr Cox submits that the Tribunal in this case did not believe the applicant husband due to noted discrepancies in his evidence at the hearing. No error is apparent when credibility findings are open to the Tribunal. A finding on credibility is a function of the primary decision-maker par excellence: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J.
Mr Cox submits that the Tribunal's findings were open to it as the applicant husband’s claim of persecution was not consistent with his ability to freely and legally depart China in December 2005. Further, he lodged his complaint in July 2004, but claimed the authorities did not take action against him until September 2004. Mr Cox submits that the applicant husband’s claim of having been detained for three months and then released was implausible. The applicant was also able to reside in China for another 12 months prior to his departure without incident.
Mr Cox submits that the Court cannot review the merits of the Tribunal's decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. There is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth of Australia [1999] HCA 14 at [137].
I accept the analysis of Mr Cox in respect to the first ground of the amended application. Under the subheading “Findings and Reasons” in the decision, the Tribunal clearly set out each of the applicant husband’s claims and dealt with them. The Tribunal then summarised those findings as follows:
The Tribunal does not accept the applicant is a witness of truth. The evidence indicates that the applicant lived a productive and event free life until early 2004 when the local provincial government wished to rescind his lease for land so that a freeway could be constructed. The Tribunal considers that it is not consistent with the applicant’s claims, namely that he was persecuted by the authorities in his country, that he was able to depart the country in December of 2005. The Tribunal does not accept that the applicant was the subject of arbitrary arrest and detention in 2004 on the basis that he and a number of other disgruntled farmers lodged one formal complaint about a compensation offer. The Tribunal in making this finding notes that the applicant states that he lodged that complaint in July of 2004 and that the authorities did not act until September of 2004. It appears implausible that the authorities, if the applicant was of adverse interest to them, would not act for 3 months. Further to this it appears implausible that if the applicant was of adverse interest to the authorities that he would be detained for 3 months and then released. This finding is further fortified by the fact that the applicant continued to reside in The Peoples Republic of China for another 12 months prior to his departure to Australia in December 2005 without incident
With regard to the applicant’s claim that he was found to be in the possession of Falun Gong literature the applicant stated that he was not an adherent of Falun Gong, he did not know anything about Falun Gong or its practice. The Tribunal does not accept on the evidence before it that the applicant has anything but a remote familiarity with the Falun Gong movement, namely knowledge of its leader and that this component of his claims has been fabricated to further embellish them.(CB 102)
The finding of the Tribunal was essentially one of credit. Although the applicant may disagree with the finding, merits review is not a function of this Court. The grounds in the amended application are not relevant to the Tribunal decision on issues contained in the protection visa application. This ground cannot be sustained and must be rejected.
In respect of the second ground, which is a claim that the Tribunal relied on irrelevant and out of date country information, Mr Cox submits this is misconceived because the Tribunal did not rely on any independent country information in its decision. In any event, the Tribunal is not obliged to put independent country information to the applicant for comment provided if it is general and not specific about the applicant: s.424A(3)(a).
I accept this submission. The Tribunal decision made no reference to any type of country information, nor does it indicate that the Tribunal based its decision on external material source but did not disclose it. This is again indicative of a formulaic approach that bears no relation to the claim. This ground must be rejected.
The third ground claims that the Tribunal was biased and did not consider the applicant husband's claims. Mr Cox submits that it is well-established that bias, an aspect of bad faith, is a serious allegation involving personal fault on the part of the decision-maker. It must be clearly proved by evidence. It is rare for a Court to find that an administrative decision-maker acted in bad faith, especially when the only support for this is the decision record: SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [43]-[48]; VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102. No evidence, by the way of a transcript of the Tribunal hearing or otherwise, has been provided in support of this claim. Mr Cox submits that the applicants would need to present more than just the conclusion reached by the Tribunal to support this claim.
A party alleging bias on the decision-maker’s part carries a heavy onus and it must be clearly proved: Minister for Immigration & Multicultural Affairs v Jia 205 CLR 507 at 531. The applicant has made no attempt to particularise the claim or provide any evidence in support. The ground only appears to express disagreement with the outcome of the decision, without a clear understanding of meaning of the term “bias”. This ground must be rejected.
Conclusion
The applicant husband in these proceedings was a self-represented litigant who appeared with the assistance of a Mandarin interpreter. It was clear that he had no understanding of the issues before the Court or how he may present his case. He relied entirely on the amended application prepared by a third party but did not understand its contents or relevance. The applicant husband participated in the Court-sponsored panel advice scheme and availed himself of the opportunity to file an amended application. However, the assistance of the unknown third party has not been of any real practical assistance to the applicants. This places an obligation on the Court to independently consider whether any argument based on the material, that is, the Court Book, and in particular the Tribunal decision, can support a claim of jurisdictional error. Mr Cox, appearing for the first respondent, assisted with written submissions in response to the application. I am satisfied that all of the issues identified in the application have been satisfactorily addressed by the first respondent's submissions. It is not apparent that any other ground of review exists which would suggest that the Tribunal made a jurisdictional error in its decision-making process. Consequently, the applicants’ claim should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicants pay the first respondent's costs and disbursements of and incidental to this application.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 17 September 2007
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