SZJNT v Minister for Immigration - [2007] FMCA 2117

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJNT v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 2117

MIGRATION – Review of RRT decision – whether Tribunal failed to comply with s.420 Migration Act 1958 – whether duty to make inquiries – whether failure to comply with ss.424A and 425 Migration Act 1958.

Migration Act 1958, ss.420, 424, 425

NAIS v Minister (2005) 228 CLR 470
Minister for Immigration v SGLB [2004] HCA 32
Zekiroski v Ministerfor Immigration [2004] FCA 1288
Azzi v Minister for Immigration [2002] FCA 24
SXFB v Minister for Immigration [2005] FCA FC 164

Applicant:

SZJNT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 3012 of 2006

Judgment of:

Raphael FM

Hearing date:

19 December 2007

Date of last submission:

19 December 2007

Delivered at:

Sydney

Delivered on:

19 December 2007

REPRESENTATION

Applicant in person

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3012 of 2006

SZJNT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China. She arrived in Australia on 18 December 2005. On 30 January 2005 she applied for a protection (class XA) visa from the Department of Immigration & Multicultural Affairs. On 21 April 2006 a delegate of the Minister refused to grant her a protection visa and on 23 May 2006 the applicant applied for a review of that decision from the Refugee Review Tribunal.
The Tribunal wrote to the applicant on 7 June 2006 offering her the opportunity to attend a hearing on 11 July 2006. The applicant attended. On 11 July 2006 the Tribunal wrote a letter pursuant to s.424A to the applicant care of her migration agent. That letter was responded to on 25 July 2006 by the provision of a statutory declaration signed by the applicant. On 28 August 2006 the Tribunal determined to affirm the decision under review and handed that decision down on 19 September 2006.
The applicant's claim to be a person to whom Australia owed protection obligations arose out of her activities whilst working in a garment factory. She claimed that as a result of her agitation she was reported to the PSB, was detained, tortured and beaten and only released after she gave a false confession. Upon her release her father arranged for her to travel to Australia through the assistance of a friend.
When the matter came before the Tribunal, it questioned the applicant about the inconsistency between the story that she had told and the application that she had made for a visitor's visa to Australia. In that application she had told the department that she was a married woman working in a travel agency and who had won a trip to Australia in a lucky draw.
The Tribunal referred to notes prepared by a departmental officer in Guangzhou which indicated that when the application had come in, inquiries had been made through the telephone and these inquiries revealed that the applicant was employed at the ticketing agency and that she had spoken to the departmental officer. The applicant denied any knowledge of this conversation to the Tribunal and asserted again that her only employment had been at the garment factory.
The s.424A letter at [CB62] rehearses these matters and tells the applicant:
“This information is relevant as it indicates you are not a witness of truth. As you are employed at the Shenzhen Airport Ticketing Service Co Ltd., you could not have been employed by Dongfeng Garment Making Factory and its proprietor could not have organised for you to be detained by the PSB for anti-government activity. You have created your claims in order to obtain the visa sought.”
In a statutory declaration the applicant confirms the claims made before the Tribunal that she had never spoken to anyone from the department. She states at [CB65]:
“I believe that there must be a record in relation to this matter such as a recording tape, which can easily verify what I said.”
In its findings and reasons the Tribunal deals with the inconsistency between the application for a visitor visa and the story told by the applicant in her protection visa application and to the Tribunal [CB77]:
“In her s.424A response the applicant also suggests that there must be a record available of the conversation between herself and the Department officer, such as a tape recording. I do not accept that every telephone call of Australian authorities checking the bona fides of visa applicants are recorded, let alone retained. I reject this claim. I prefer to rely on the Department officer, whose notes were made at the time of the applicant's application for a visitor visa, stating that the officer had called the applicant at her place of employment and had spoken to her. Furthermore, the applicant did not suggest to the Tribunal at the hearing that there should have been a tape recording made or kept of that conversation. I am satisfied the applicant was employed by the Shenzhen Airport Ticketing Co Ltd prior to her departure from China.”
The applicant filed an amended application in this Court on 26 March 2007. She indicates that she believes there was a procedural error in the Tribunal's decision in that the Tribunal failed to comply with its obligations under s.420 Migration Act 1958 (“the Act”). She argues that the Tribunal failed to act according to substantial justice and the merits of the case by not getting and assessing evidence favourable to her.
As Mr Reilly points out in his helpful written submissions, s.420 of the Act does not confer private rights on which an applicant may rely: NAIS v Minister (2005) 228 CLR 470 at [34]-[36]. There are a number of other particulars given of this failure to comply with s.420 which include a refusal by the Tribunal to conduct a genuine investigation. This would appear to be a reference to the allegation by the applicant of a tape recording. The question of a duty to inquire has been considered in a number of cases, including Minister for Immigration v SGLB [2004] HCA 32, Zekiroski v Ministerfor Immigration [2004] FCA 1288, Azzi v Minister for Immigration [2002] FCA 24 and SXFB v Minister for Immigration [2005] FCA FC 164.
To the extent that there is any duty to inquire, it is limited to information that is readily available and of critical importance. All the Tribunal had here was an assertion by the applicant that the telephone discussion between the departmental officer and the travel agency would have been recorded. It was her assertion and it was no more than an assertion. If she had made inquiries herself and discovered that these conversations were recorded and that the recordings were kept then it may well be that the Tribunal had a duty to make some inquiries. But she did not do that. She did not advance a sufficient case to require the Tribunal to do more than note the assertion and express its views upon it.
Other parts of the particulars repeat the applicant's story and to the extent that they request the Court to do anything, they are requesting impermissible merits review.
The applicant then goes on to make an allegation that the Tribunal failed to comply with its obligations under s.424A(1) of the Act. She claims that the Tribunal did not send her a letter relating to the information that there should not be any tape recording of the conversation. I am of the view that this is a misunderstanding of what the Tribunal did. This is not a piece of information that comes from the Tribunal. It was the way in which the Tribunal dealt with the allegation or suggestion of the applicant that the telephone conversation would be recorded. The Tribunal had no more knowledge than the applicant about this matter. It is not unreasonable therefore that it should have rejected the assertion. The rejection of assertions does not constitute "information" for the purposes of s.424A and in the event it could be it would constitute information that is not specifically about the applicant or another person and is just about a class of person which the applicant or other person is a member and thus exempt pursuant to s.424A(3)(a) of the Act.
Finally, the applicant argues that the Tribunal failed to comply with its obligations under s.425, which states:
“(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal. “
The applicant also states that she was not provided a fair and genuine chance to give her evidence or to present her arguments. She provides no evidence by way of transcript or otherwise and the best evidence of what occurred at the Tribunal is therefore the record in the decision. It seems to me that the applicant was very fairly treated by the Tribunal, which allowed her to express her claims and then brought up the difficulties of credibility arising out of the existence of a totally inconsistent application for a visitor's visa. She was not only given a chance to respond to those problems at the hearing but she was written a letter under s.424A(1) to which she responded.
In the circumstances I am unable to assist the applicant by providing review of this decision. The application must be dismissed. The applicant will pay the first respondent's costs by assessment in the sum of $4500.00.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 21 December 2007