SZJPC v Minister for Immigration
[2007] FMCA 962
•11 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJPC v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 962 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal breached s.424A of the Migration Act 1958 (Cth). |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 91S; 417; 424A; 424A(1); 474; pt.8 div.2 |
| SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238 |
| Applicant: | SZJPC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3155 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 5 June 2007 |
| Date of last submission: | 27 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 11 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms J. Keys |
| Counsel for the Respondent: | Ms R. Francois |
| Solicitors for the Respondent: | Ms S. Zarucki, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3155 of 2006
| SZJPC |
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
14 September 2006 and handed down on 5 October 2006 (“the Tribunal”).
The procedural history of the Applicant’s application for a protection visa is accurately summarised in counsel for the First Respondent’s Outline of Submissions filed 4 June 2007 as follows:
“2. The applicant appears to be a 51 year old male and a citizen of the Peoples Republic of China who arrived in Australia on 9 December 1995. The applicant lodged two protection visa applications at different times under different names. It is the first application which is the subject of the current proceedings, however both were relevant to the Tribunal’s decision.
3. The first application was lodged on 12 April 1996 under the name of Guo Xin ZHAO. On 27 June 1997 a delegate of the first respondent refused the first protection visa application. The applicant did not initially lodge an application to the Tribunal with respect to that decision.
4. The second application was lodged on 18 August 2000 under the name Gao Ming HU, which appears to be the applicant’s real identity. On 11 September 2000 a delegate of the first respondent refused the second protection visa application.
5. On 16 October 2000 the applicant sought review of that delegate's decision by the Tribunal. On 14 March 2001 the Tribunal affirmed the delegate's decision. The applicant did not appeal that decision. Instead, by letters dated 30 June 2005 and 11 January 2006, the applicant sought that the Minister exercise her discretion to permit him to stay in Australia under section 417 of the Migration Act 1958 (“Act”). The letters did not set out any allegations of persecution or humanitarian considerations but rather emphasised the applicant’s skills as a carpenter and ability to contribute to the Australian community. The applicant’s requests were refused on 15 December 2005 and 14 July 2006.
6. On 16 June 2006 the first respondent determined that it was necessary to re-notify the applicant of the delegate’s decision to refuse his first protection visa application. This was presumably due to the effect of the Federal Court’s decision in Chan Ta Srey v Minister for Immigration & Multicultural and Indigenous Affairs (2003) 134 FCR 308; [2003] FCA 1292 ("Srey"). In Srey Gray J held (at [54]) that a letter of notification which had relied upon the invalid regulation 5.03 did not comply with the mandatory requirements of section 66(2)(d)(ii) of the Act because it failed to state accurately the time within which the application for review might be made. Accordingly, Gray J held the Minister’s obligation to notify the applicant of the decision not to grant the substantive visa he sought, which was imposed by s 66, had never been discharged and the applicant had not been notified by the Minister for the purpose of the Act.
7. Seizing the opportunity created by the re-notification, on 1 July 2006, the applicant lodged an application to the Tribunal with respect to the first protection visa application. By letter dated 18 July 2006, and addressed to the applicant's last known residential address, the Tribunal invited the applicant to give oral evidence at a hearing before it on 17 August 2006. The applicant did not attend the hearing.
8. On 18 August 2006, the Tribunal wrote to the Applicant pursuant to section 424A of the Act seeking his comments upon particular information in his two protection visa applications and requests under section 417 of the Act which gave rise to concerns about his credibility. On 26 August 2006 the applicant wrote to the Tribunal requesting an extension of time to respond to the section 424A letter. On 30 August 2006 the Tribunal refused the applicant's request. On 7 September 2006 the applicant responded to the Tribunal's section 424A letter. The applicant explained the inconsistencies by blaming his migration agents but then made the following “truthful” explanation of his circumstances:
“Around 1st December 1995 I departed from Fuzhou City Fujian province, P.R. China, I first stopped at Hongkong, then I arrived in Australia. At the time the passport I held was issued by Hebei Province P.R. China with the holder’s name Guoxin ZHAO. There was no such a fact that I held Indonesian passport.
I have lived and worked in Australia for 11 years, and I have got used to life here. I live on my own and have my own skills, so my employer really would like to guarantee that I can continue to work here. In the way of thinking and living habits I have become an Australian, and I have got into the Australian society. My occupation has been an occupation in demand in Australia, and I would like to contribute to the Australian society.
If I was compelled to go back to China, it would be very hard for me to find a job, and it would cause the difficulties to live. I hope that Australian government would consider my circumstances from the perspective of humanism and allow me to remain in Australia, so I could live on my own and contribute to the society.”
9. On 5 October 2006 the Tribunal affirmed the delegate's decision.”
The Tribunal’s decision
The decision of the Tribunal that is the subject of this proceeding was made on 14 September 2006. That decision followed an application for review of the decision made by the Delegate on 27 June 1997.
The Tribunal noted that the Applicant had been invited to come to a hearing before the Tribunal on 17 August 2006. However, there was no appearance by the Applicant and no reason was provided to the Tribunal for the Applicant’s non-attendance.
The Tribunal noted that it had a number of files before it, including the Department file relating to the later protection visa application made by the Applicant on 18 August 2000 in a false name. In particular, the Tribunal said “a perusal of both those files indicates a range of similarities in both applications and a range of inconsistencies that the Tribunal had hoped to raise with the applicant at hearing and seek a response to these issues under Section 424A of the Migration Act.” The Tribunal wrote to the Applicant on 18 August 2006 identifying its concerns arising out of the claims made by the Applicant in his protection visa applications and inviting the Applicant to comment by 13 September 2006.
The Tribunal noted the Applicant’s response to that letter that he had lodged two protection visa applications in different names. The Tribunal noted that the Applicant stated in his letter that he appreciated an opportunity to “state the truth of how I came to Australia.” The Tribunal then noted the terms of the Applicant’s explanation.
The Tribunal made its decision on 14 September 2006. The Tribunal found that the material before it “substantially impinged upon the credibility of the applicant and the veracity of his claims for protection in 1996.” The Tribunal stated that:
“the fact that the applicant failed to attend the hearing before the Tribunal so that these issues and the basis for his claims for protection could be tested further diminishes the Applicant’s credibility. Indeed it appears from the response the applicant provided to the Section 424A letter of 18 August 2006 that his primary motivation for staying in Australia has been based on the economic benefits that have accrued to him from 11 years of working and living in this country. The applicant does not address the claims for protection that he submitted with his 1996 application that is the subject of this review.”
The Tribunal concluded that the Applicant’s credibility was “substantially diminished by a number of factors”. The Tribunal then identified the inconsistencies in the 1996 and 2000 applications, the failure of the applicant to address his protection issues in his s.417 applications to the Minister and on review to the Tribunal.
The Tribunal concluded that the evidence before it suggested that “in regard to his claims for protection and pertaining to identity issues the applicant has been loose with the truth and as noted above the Tribunal has not had the chance at a hearing to test these issues further.”
The Tribunal then concluded that having considered the evidence as a whole, it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention.
On 27 October 2006, the Applicant filed an application in this Court for review of the decision of the Tribunal.
The proceeding before this Court
The Applicant was represented by Ms Keys, of counsel, at the hearing before this Court.
By consent, the Applicant was granted leave to rely upon an amended application drafted at the hearing before this Court in the following terms:
“3.The Refugee review Tribunal did not provide the applicant with procedural fairness.
a) The Applicant was denied procedural fairness specifically by the Second Respondent in providing information in the s.424A letter to the Applicant dated 18 August 2006, “that would, subject to any comments [he made], be the reason, of part of the reason for deciding that [he was] not entitled to a protection visa”. Specifically because s.424A(1)(b) requires that “the Tribunal must ensure, as far as practicable that the Applicant understands why it is relevant to the review”:
i) The information provided by the Second Respondent in the s.424A letter dated 18 August 2006 was complex and confusing as such that it was not clear what “comments” the Applicant was being invited to provide.
ii) If the Second Respondent intended to canvass the information contained in the s.424A letter dated 18 August 2006 at the hearing on 17 August 2006 it failed to provide that information in accordance with s.424A before the hearing.
iii) The s.424A letter dated 18 August 2006 provided information that “The application to the Minister does not make any reference at all to your 1996 or 2000 claims for protection…”; This information was incorrect.
b) The Applicant should have been given an extension of time to comment about the information, particularly when, if the Applicant fully understood the implications of the “information” on his credibility and the veracity of his claims it would have been reasonable for him to obtain legal advice; and legal advice could only have been obtained/given after the Applicant had been provided with copies of his 1996 and 2000 protection visa applications.
c) The Second Respondent failed to give the Applicant an opportunity to explain why he did not attend the hearing on 17 August 2006. As the Second Respondent ultimately concluded that :
“the fact that the applicant failed to attend the hearing before the Tribunal so that these issues and the basis of his claims for protection could be tested further diminishes the applicant’s credibility”
The Second Respondent failed to include this “information” in the s.424A letter dated 18 August 2006 when it would have been proper to do so.
d) The fact that the Second Respondent sought comments pursuant to s.424A based on a belief that the inconsistencies between the 1996 and 2000 applications were relevant to the Applicant’s credibility and the veracity of his claims, gives the appearance that the Second Respondent had pre-determined the Applicant’s credibility and the veracity of his claims.”
Counsel for the Applicant confirmed that this was the only ground upon which the Applicant relied and formally withdrew all other grounds.
Grounds 3(a) and (b)
Counsel for the Applicant submitted that the Tribunal had denied the Applicant procedural fairness by failing to comply with its obligations under s.424A(1) of the Act in that:
·The Tribunal’s letter dated 18 August 2006 was complex;
·The Tribunal did not inform the Applicant that he should obtain legal advice;
·The Tribunal did not explain that the points made in the letter were inconsistent in the context of the credibility and veracity of the Applicant;
·The Tribunal did not give the Applicant an indication of what the information was about and how it may adversely affect the Applicant;
·The Tribunal failed to raise the failure of the Applicant to appear at the hearing;
·The Tribunal did not tell the Applicant of matters that were going to be raised against him; and
·The Tribunal did not inform the Applicant that matters of his credibility would be canvassed at the hearing.
In relation to the Applicant’s contention that the inadequacy of the Applicant’s response to the Tribunal’s letter dated 18 August 2006 demonstrated that the letter was too “complex”, counsel for the Applicant also submitted that the 21 points raised by the Tribunal in its letter should have been numbered, rather than by dot point.
However, there was no complaint made by the Applicant in his letter, dated 26 August 2006, responding to the Tribunal’s letter, dated
18 August 2006, that he had any difficulty in understanding the terms of the Tribunal’s letter or the issues raised by that letter. Nor has there been any evidence tendered to this Court to support such a complaint. The Applicant’s letter, dated 26 August 2006, states that the Applicant had read the Tribunal’s letter. The Applicant’s letter provided a meaningful response to matters raised in the Tribunal’s letter, albeit, a global response. The Applicant’s letter did seek an extension of time to obtain copies of his protection visa applications. In its letter refusing an extension of time, dated 30 August 2006, the Tribunal enclosed copies of the Applicant’s 2 previous protection visa applications and confirmed that the Applicant had until 13 September 2006 to comment. On 7 September 2006, the Tribunal received a further response from the Applicant which stated, inter alia:
“I appreciate this opportunity granted by RRT for me to state. Due to reason presented above, I could not answer the questions regarding the content of my previous applications. I now can only state the truth of how I came to Australia”. [emphasis added]
The matters mentioned in the letter as “presented above” referred to his reliance in 2000 on his migration agent in completing his application.
In the circumstances, I reject the submission by counsel for the Applicant that the terms of the Tribunal’s letter dated 18 August 2006 were too complex or written in any matter giving rise to error on the part of the Tribunal, let alone jurisdictional error.
At the request of the Court, the Court received further written submissions from counsel for the Applicant and counsel for the First Respondent on the effect of the recent High Court case of SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”).
Counsel for the Applicant submitted that SZBYR supported her contention that the reason for the Tribunal affirming the decision under review was the Tribunal’s disbeliefs about the Applicant’s credibility formed prior to the scheduled hearing date. Counsel for the Applicant submitted that the Tribunal’s disbeliefs did not emerge as a result of any hearing and therefore was information that enlivened s.424A of the Act. However, if that were so, such a complaint was met by the Tribunal’s letter dated 18 August 2006.
However, counsel for the Applicant contended that the Tribunal’s letter dated 18 August 2006, and purportedly sent pursuant to s.424A of the Act, did not comply with the requirements of s.424A(1) of the Act.
Counsel for the First Respondent submitted that the short answer to all the submissions of the Applicant in relation to the allegation of a breach of s.424A of the Act, particularly grounds 3(a) and (b), is that there was no enlivenment of the obligations of s.424A of the Act.
The s.424A letter identified as “information” the following:
i)the Tribunal’s analysis of the inconsistencies in the Applicant’s 2 protection visa applications; and
ii)the lack of particular information, being a reference to the Applicant’s 1996 or 2000 claims for protection, in his s.417 letters to the First Respondent.
(i) The Tribunal’s analysis of the inconsistencies in the Applicant’s 2 protection visa applications”
In relation to (i) above, the information contained in the Applicant’s protection visa application was not the reason why the Tribunal affirmed the decision under review. Indeed, in the words of the joint judgment of the majority in SZBYR at [17], “if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.”
The majority in SZBYR also held that information provided by an applicant in support of his protection visa application to the Department was not relevant information that enlivened s.424A of the Act unless, in its terms, it contained a “rejection, denial or undermining” of the Applicant’s claim to be a person to whom Australia has protection obligations (SZBYR at [17] and [19]).
The information in the Applicant’s protection visa was not a rejection, denial or undermining of the Applicant’s claim to be a person to whom Australia has protection obligations. Rather, it was the Tribunal’s lack of satisfaction arising from its subjective analysis and appraisal of the material before it as disclosing inconsistencies in various statements made by the Applicant in material before the Tribunal.
In the circumstances, the Tribunal’s subjective appraisals and thought processes are not “information” that enliven the s.424A(1) of the Act. (VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (“VAF”); SZBYR at [18]). “Information” that enlivens s.424A of the Act does not include “the existence of doubts, inconsistencies or the absence of evidence” (SZBYR at [18]).
(ii) The lack of particular information, being a reference to the Applicant’s 1996 or 2000 claims for protection, in his s.417 letters to the First Respondent
In relation to (ii) above, again, there was no text in the s.417 letters that could be construed as a rejection, denial or undermining of the Applicant’s claim to be a person to whom Australia has protection obligations. Rather, it was the lack of information that caused the Tribunal concern. Again, the Tribunal’s concern arises from its own subjective appraisal and thought processes of the material before it. As such, that is not “information” that enlivens s.424A of the Act.
Accordingly, neither the inconsistencies nor the content of the s.417 letters was information that enlivened s.424A of the Act.
Ground 3(c)
Ground 3(c) alleges that the Tribunal’s statement that the Applicant’s credibility was further diminished by his non appearance is “information” that should have been given by the Tribunal to the Applicant pursuant to s.424A(1) of the Act. This allegation is misconceived. The Tribunal made such a statement in the context where its concerns about the Applicant’s credibility had been drawn to the Applicant’s attention in a letter from the Tribunal dated 18 August 2006 and the Tribunal’s observation from the Applicant’s response that his primary motivation for staying in Australia appeared to be economic based.
A fair reading of the Tribunal’s decision makes it clear that the Tribunal was doing no more than expressing its thought processes about the Applicant’s credibility. As such, there is no enlivenment of s.424A of the Act (SZBYR at [20]).
Ground 3(d)
Ground 3(d) appears to allege that, in sending the letter dated
18 August 2006, on the basis that inconsistencies in claims made by the Applicant in separate protection visa applications were relevant to the Applicant’s credit, the Tribunal had predetermined the Applicant’s credibility. If this is intended to be an allegation of bias or apprehended bias on the part of the Tribunal, it is not made out.
The language of s.424A(1) of the Act uses the words “would be”. In the circumstances, the use of those words by the Tribunal in the s.424A letter, in context, do not suggest that the Tribunal was intending to convey some predetermination or prejudgment of the issues raised in s.424A the letter.
Rather, the Tribunal’s use of the words “would be” is in accordance with the use referred to by the High Court in SZBYR at [17] where the High Court stated as follows:
“The statutory criterion does not, for example, turn on “the reasoning process of the Tribunal” or “the Tribunal’s published reasons.” The reason for affirming the decision under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (“would be”) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal’s particular reasoning on the facts of the case.”
The Tribunal’s letter dated 18 August 2006 was doing no more than putting to the Applicant that his credibility was an issue for various reasons. In fact there was no obligation on the Tribunal to do so for the reasons referred to above in these Reasons. The fact that the Tribunal took steps of procedural fairness that it was not obliged to take is not an error by the Tribunal that goes to its jurisdiction.
Otherwise, the Tribunal noted that it had not had the opportunity at a hearing to explore issues of concern that related to the Applicant’s credibility because the Applicant did not come to the hearing. In particular, the Tribunal noted that:
“The inconsistencies in the 1996 and 2000 applications along with the failure of the applicant to address his protection issues in his 417 humanitarian application to the Minister and on review to this Tribunal. The evidence before the Tribunal would suggest that in regard to his claims for protection and pertaining to identity issues the applicant has been loose with the truth and as noted above the Tribunal has not had the chance at a hearing to test these issues further”
The Tribunal also noted that the Applicant had provided no detail about his claim of harm suffered by his family in China at the hands of the Chinese Communist Party and “failed to articulate how his political views came to the attention of the Chinese authorities and why he holds the fear that he asserts in his application. There is no evidence which would suggest that the applicant holds a well founded fear of persecution for a convention reason if he were to return to the People’s Republic of China”.
A fair reading of the Tribunal’s decision makes it clear that the Tribunal was not satisfied that the Applicant met the criteria for being a refugee as set out in s.36(2) of the Act.
In the course of its decision record the Tribunal revealed its thought processes and subjective appraisal of the material before it. The ultimate reason for the Tribunal’s lack of satisfaction was the inadequacy in the applicant’s material and the lack of opportunity by the non appearance of the applicant to explore the applicant’s assertions further. (VAF at [24] per Finn and Stone JJ; SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 at [29] per Allsop J; SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 at [16] per Hely J; SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 at [23] per Bennett J; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [216] per Allsop J; SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238 at [11] – [13] per Allsop J).
The Tribunal’s conclusion that it was not satisfied that the Applicant was a person to whom Australia has protection obligations was open to it on the material before it and for which it provided reasons. In the circumstances, the Tribunal was bound to refuse the Applicant a protection visa by reason of s.65(1)(b) of the Act.
Counsel for the Applicant also submitted that the Tribunal was obliged to inform the Applicant that he should obtain legal advice. Such a contention is without foundation and 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 forty-four (44) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 11 July 2007
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