SZJOA v Minister for Immigration
[2007] FMCA 1733
•16 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJOA v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1733 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – obligations pursuant to s.4242A of the Act do not arise – choice and weight accorded independent country information a matter for the Tribunal – no failure to consider claims – no evidence of bias – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.424A, 65, 36(2) |
| SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009 Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; (2004) 140 FCR 572 VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA VAF v Minister for Immigration and Indigenous Affairs (2006) 150 FCR 214 NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 157 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 |
| Applicant: | SZJOA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3046 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 16 October 2007 |
| Date of Last Submission: | 16 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 16 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Ms K Morgan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The reference to the first respondent be amended to read “Minister for Immigration and Citizenship.”
The application filed on 19 October 2006, and amended on 15 February 2007, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3046 of 2006
| SZJOA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised from Transcript)
This is an application under the Migration Act 1958 (“the Act”) filed on 19 October 2006 and amended on 15 February 2007, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 5 September 2006 and handed down on 26 September 2006, which affirmed the decision of a delegate of the first respondent Minister to refuse to grant a protection visa to the applicant.
Background
The applicant is a citizen of the People’s Republic of China (“China”) who arrived in Australia on 27 February 2006 and applied for a protection visa on 27 February 2006 (reproduced in the Court Book (“CB”) CB 1 to CB 31, with annexures). On 27 May 2006, a delegate of the respondent Minister refused to grant a protection visa to the applicant. On 30 June 2006, the applicant applied to the Tribunal for review of that decision. [On 5 September 2006, the Tribunal affirmed the decision of the delegate of the respondent Minister.]
The applicant’s claims to protection
From the material that is before the Court, what can be discerned is that the applicant’s claims to protection are set out in an unsigned statement attached to his application for protection visa (reproduced in the Court Book (“CB”) at CB 27). The applicant claimed that in 1998 he became involved with an unregistered religious practice in his home town and that he was interested in talking to people at this church in his spare time. The applicant claimed that he was not “formally” a Christian, not having been baptised, but that nonetheless when the church in 2000 came to the attention of Chinese authorities, he and some senior members of the church were detained by the police, that his name was on a list for investigation and that, in order to avoid investigation, he moved to another city. The applicant further claimed that in September 2005, his wife advised him that she had received information that police were intending to charge him in relation to the unregistered religious practice. The applicant claimed that he bribed Government officials in order to get a passport to come to Australia, that he was “lucky to leave China on time,” and that he would be subject to imprisonment in China if he were to return as he was suspected of being “a senior organizer of that underground church.”
The Tribunal
The applicant gave evidence before the Tribunal on 4 September 2006 and the Tribunal’s account of what occurred at the hearing is set out in its decision record (at CB 69 to CB 75). Based on what the applicant said at the hearing, the Tribunal found that there were numerous inconsistencies in the applicant’s evidence given at the hearing, that the applicant’s claims were, in some respects, implausible (CB 76.4) and that, further, the applicant’s evidence was inconsistent with independent evidence that was before the Tribunal. The Tribunal found that the applicant was an “unreliable witness” who had fabricated his claims in order to further his application (CB 76.5).
On any plain reading of the Tribunal’s decision record, the Tribunal made its findings based on the evidence given by the applicant at the hearing as to his Christian beliefs (CB 77.3), his explanations as to why he had not practised his claimed Christianity in Australia (CB 77.4) and inconsistencies in his evidence at the hearing as to his residence in China at times when he claimed the authorities were looking for him (CB 77.6). Further, the Tribunal found the applicant’s evidence at the hearing was contradicted by independent evidence before it, as it related to the availability of Bibles to Christians in China (CB 77.7). Accordingly, the Tribunal was “not satisfied” that the applicant had ever attended Church or that he was of adverse interest to Chinese authorities for reasons of religion or any other Refugees Convention reason (CB 77.9 to CB 78.1). In all, therefore, it found that the applicant did not have a well-founded fear of persecution for a Refugees Convention reason and affirmed the delegate’s decision not to grant the applicant a protection visa.
Application to the Court
The application filed on 19 October 2006 puts forward five grounds:
“1. The Tribunal failed to consider my calims because the Tribunal did not refer to sufficient independent information for the consideration of my application.
2. The Tribunal failed to notify me of the reason or part of the reason for affirming the decision from DIMA.
3. The Tribunal failed to carry out its statutory duty.
4. The Tribunal failed to consider my application according to s424A of the Migration Act.
5. The Tribunal failed to assess the chance of my persecution on my return to China.”
[Errors in Original]
The amended application filed on 15 February 2007 puts forward the following:
“1. 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 required to provide particulars of the information that was the reason, or a part of the reason for affirming the decision. Migration Act 1958s. 424A. The Tribunal also was required to explain why the information was relevant and provide the applicant with an opportunity to comment upon it.
(c) The above particulars had to be provided in writing SAAP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDUSTRIAL AND ETHNIC AFFAIRS (2005) HCA 24 (18 May 2001)
McHugh J.
Para68‘… The assumption that no breach of s.424A occurs if the applicant has otherwise been given procedural fairness overlooks the imperative nature of the decision. Nothing in the section suggests that fairness i nthe way in which the Tribunal observes it statutory obligations is an implied limitation on its operation. The section describes a procedural step that, if enlivened by the circumstances of the case, the Tribunal is required to take in every case. Further, the, mandatory nature of the obligation in s.424A(2) (b) points to the conclusion that the failure to provide in writing to the applicant particulars of the adverse material and the invitation to comment upon it amounts to breach of s. 424A.’
para 7/ ‘… If the requirement to give written particulars is mandatory, then failure to comply means that the Tribunal has not discharged its statutory function …. it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act … a decision made after a breach of s.424A is invalid.’
Hayne J
para 180 ‘I consider that the Tribunal was bound to give the appellants written notice of that information and to ensure, as far as is reasonably practicle that the appellants understand why it is relevant to the review. The Tribunal failed to do so constituted jurisdictional error.’
para 208’….Whether those steps would be judged to be necessary or even desirable in the particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case.’
(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 AND MULTICULTURAL AFFAIRS v AL SHAMRY (2002) 110 FCR 27
Para 17‘…. In our view, “applicant” wherever appearing in s. 424A means “application for review by the Tribunal of a Ministerial decision” and “application” correspondingly means the proceeding before the Tribunal which is the vehicle for such a claim for review.’
The Court did not accept the Ministers argument that ‘Application’ in the context was said to mean ‘all information given by the applicant to officials in the department(including that provided to the Tribunal) for the purposes of determining whether to grant a protection visa to the applicant.’
(e) The Tribunal based it’s findings on the information, or lack of infornmation, 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.
The Tribunal failed to refer to proper independent information for the consideration of my application.
The Tribunal failed to consider my claims.”
[Errors in Original]
Hearing before the Court
At the hearing before the Court the applicant appeared in person with the assistance of an interpreter in the Mandarin language. Ms K Morgan of Counsel appeared for the first respondent. I also have before me Ms Morgan’s written submissions filed on behalf of the first respondent on 8 October 2007.
At the beginning of the hearing the applicant claimed that he had not received the Minister’s outline of submissions in this matter. I marked as “Respondent’s Exhibit 1” a letter dated 8 October 2007, from the respondent’s solicitors sent to the applicant’s address for service, enclosing, amongst other things, the first respondent’s outline of written submissions. I was satisfied in all the circumstances, therefore, that providing the applicant and the interpreter with a short adjournment to enable the submissions to be translated for the applicant was appropriate. I was satisfied that this was the appropriate course to follow today, particularly because the applicant confirmed that the address for service provided, and to which the letter had been sent, was his home address but the explanation for his not having received the submissions was that there were a number of people living at the address.
At the resumption of the hearing, the applicant put forward two matters. First, he asked the Court to reconsider oral evidence given at the Tribunal hearing and to consider his case seriously. Secondly, he stated that he was very nervous at the Tribunal hearing.
Dealing therefore with each of the complaints as ultimately put before the Court, there appear to be three grounds that can be ascertained from the applicant’s amended application. I should just note that the amended application is almost identical in terms and pro forma presentation, as is often seen in this Court in matters of this type, but I will nonetheless deal with the application on its face.
Ground One – Failure to carry out statutory duty pursuant to s.424A
Ground one in the amended application complains that the Tribunal failed to carry out is statutory duty pursuant to s.424A of the Act. For the sake of completeness, I note that this complaint is similar, although different and more detailed, to grounds one and two of the original application to the Court. In any event, I understood this complaint, as pleaded in the amended application, to be that the Tribunal failed to notify the applicant of information that it considered would be the reason, or part of the reason, for affirming the decision under review. I note the reference to the High Court’s decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009 which is, of course, authority, amongst other things, for the proposition that a breach of the requirements of s.424A of the Act constitutes jurisdictional error in the Tribunal’s decision. I also note the reference to Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27, which is probably an attempt to argue that to the extent that the Tribunal relied on information given to the first respondent’s Department, such information should have been put to the applicant in writing pursuant to s.424A(1) of the Act.
Unfortunately for the applicant, a plain reading of the Tribunal's decision reveals that the Tribunal did not rely on any such information. The Tribunal's reason for its decision was its inability to reach the requisite level of satisfaction such that a protection visa should be granted to the applicant. This, of course, being the requisite level of satisfaction that is set out in ss.65 and 36(2) of the Act. There is very clear authority that unless the Tribunal can reach the requisite level of satisfaction, a protection visa must not be granted to the applicant (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 (at [15]-[16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73). The Tribunal's inability to reach this level of satisfaction was based on its adverse credibility finding, for which it gave reasons, on what the applicant himself said at the hearing, and the inconsistencies in his evidence at the hearing, both internally and with independent information before the Tribunal.
As to the information provided by the applicant himself at the hearing, this plainly falls within the exception contained in s.424A(3)(b) of the Act, from the requirements set out in s.424A(1) of the Act. As to independent country information that was not about the applicant or another person, such information also falls within the exception contained in s.424A(3)(a) of the Act from the obligation set out in s.424A(1) of the Act. (See QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [22], Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; (2004) 140 FCR 572 at [71], VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [12]-[14].)
As to the adverse view taken by the Tribunal of the applicant's evidence, it is now established by the High Court's endorsement in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”) at [18], of what was said by the majority of the Full Federal Court in VAF v Minister for Immigration and Indigenous Affairs (2006) 150 FCR 214 (per Finn and Stone JJ at [24]), that such adverse views are not “information” for the purposes of s.424A of the Act. Nor are inconsistencies “information” for the purposes of that section (SZBYR at [18]).
Given that the applicant appeared unrepresented before the Court, I also note that, in looking at the Tribunal's account of the hearing, the applicant was not denied a fair hearing of his claims. Despite opportunity to do so, the applicant has not put any evidence before this Court to challenge the Tribunal's account of what happened at the hearing. I note in this regard that the applicant appeared in person before a Registrar of this Court at the first Court date on 7 December 2006 when he signed short minutes of order which subsequently became orders made by the Registrar and included the opportunity for the applicant to file and serve any additional evidence on which he sought to rely, including a transcript of the Tribunal hearing. I note also that the applicant was assisted on that occasion by an interpreter in the Mandarin language.
In any event, the Tribunal's account of what occurred at the hearing reveals that the Tribunal specifically raised inconsistencies in the applicant's evidence with him and gave him the opportunity to explain. I note, for example, that in the following parts of the Tribunal's decision record, at CB 73.2, CB 73.3, CB 74.5, CB 74.9 and CB 75.5, the Tribunal put to the applicant that his knowledge of Christianity appeared minimal (CB 75.3). The applicant would not have been in any doubt from this account that, at the hearing, the Tribunal had found inconsistencies in his evidence and that it had doubts about his claims to be a Christian. It was the findings in relation to internal inconsistencies in his evidence, the inconsistencies in his evidence when compared with independent country information before it, and the implausibility of his claims, that were determinative factors in the Tribunal's reasoning leading to its decision to affirm the delegate's decision.
Ground Two – Failure to refer to “proper independent information
The applicant also complains in the amended application that the Tribunal failed to refer to proper independent information in considering his application. In the original application to this Court, the reference is to “sufficient independent information.”
I note, firstly, that this complaint is made without any specificity, and I also note that, in part, the Tribunal did rely upon independent country information, as well as, to a substantial extent, on what the applicant himself said at the hearing. Nevertheless, to the extent that the Tribunal relied on independent country information (for example, in relation to the availability of Bibles in China), I cannot discern jurisdictional error in the Tribunal so relying on such information and referring to such information. I note, as Ms Morgan has submitted, that the use of this information relied on did not breach s.424A(1) of the Act. As noted above, it fell within ss.42A(3)(b) and 424A(3)(a) of the Act. As Ms Morgan also submits, the choice and weight given to country information is a matter for the Tribunal. I note reliance in the Minister's submissions on the decision in the Full Federal Court in NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 (at [11]), to which could be added the Full Federal Court decision in VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 (at [32]). Importantly, the applicant does not explain what he means by “proper” or “sufficient” independent information which he says the Tribunal could, or should, have relied upon.
Ground Three – Failure to consider the applicant’s claims
The third ground is that the Tribunal failed to consider his claims. I saw this as generally reflecting part of what is set out in grounds one and three in the original application. I cannot discern jurisdictional error in relation to this ground. The material that is before the Court now reveals that the Tribunal understood the applicant's claims and, as I said earlier, gave the applicant the opportunity to expand and explain these claims at a hearing before it. On a plain reading of its decision record, the Tribunal addressed, and dealt with, all of his claims as put. That is, that he practised in an underground church in China, that he was harassed and investigated by the authorities in the year 2000, that he fled to another location in China and that, ultimately, he fled China in 2005 because he was told that authorities were going to bring criminal charges against him in relation to what they saw as his activities at the underground church. All of this was addressed by the Tribunal such that this complaint is simply not made out.
Beyond this, I can really only discern the applicant's complaint as being a request for this Court to engage in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259) and, indeed, this is exactly what was involved with the first of the matters that the applicant put before the Court today, that is, his request that the Court reconsider the oral evidence that he gave at the Tribunal hearing. As I explained to the applicant, in the legal framework within which his application for a protection visa operates, and the legal framework relating to the jurisdiction of this Court and the matters with which this Court can assist the applicant, there is a clear difference between the role and function of the Tribunal and the role and the power of this Court. To the extent, therefore, that the applicant asks this Court to reconsider his evidence at the Tribunal hearing as it goes to the issue of a well-founded fear of persecution for a Convention reason, then, simply, this Court has no power to assist the applicant, if that is indeed what the applicant is asking this Court to do.
In the same context, the applicant asked the Court to consider his case seriously. I understood this, from the way that the applicant put it, to mean that, by implication, given that he had given oral evidence to the Tribunal and the Tribunal found against him, the Tribunal did not consider his case seriously. To the extent that this is an assertion that the Tribunal failed to consider his claims, then I have already dealt with that aspect above. To the extent that this is perhaps a claim that the Tribunal did not bring an appropriate open mind to the task in which it was engaged, although not stated by the applicant, that the Tribunal was biased in the way that it approached its task, then, simply, there is no evidence before the Court that such an assertion can be made out (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361, Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102). To the extent that this may be a complaint that the Tribunal failed to give proper consideration to the applicant's claims in the sense of a failure on the part of the Tribunal to properly exercise its jurisdiction, then this also is not made out on what is before the Court.
The applicant also told the Court this afternoon that he was very nervous at the Tribunal hearing and, although not stated by the applicant, I took that to mean that he was nervous and therefore was not able to make his claims, or was prevented from giving evidence and presenting arguments to the Tribunal. Whatever the applicant intended by this statement, there is no evidence before the Court to support any such complaint by the applicant and the Court can only rely on evidence that is put before it (NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241). Simply, to the extent that the applicant says that he was nervous, on what is before the Court, there is no evidence to support such a claim, let alone that this nervousness caused him some inability to put forward his claims or to explain any aspects of his claims.
In all, therefore, looking at what is set out in the amended application, and indeed, the original application to this Court, and having considered what the applicant has said to the Court today and all of the material put before the Court, I cannot discern jurisdictional error in the Tribunal's decision, and I therefore dismiss the application made to this Court.
I should just note that in relation to the applicant's earlier claim that he had not received the first respondent’s written submissions, the applicant in fact was in possession of those written submissions but, as he explained at the conclusion of the hearing, he had not realised that this document was the written submissions document.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 23 October 2007
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