SZKBM v Minister for Immigration
[2007] FMCA 843
•13 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKBM v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 843 |
| MIGRATION – Credibility – not set finding aside even if probabilities of the case are strongly against the finding – no transcript of Tribunal hearing – no proof evidence misunderstood – adverse finding of credibility not information under s.424A. |
| Migration Act 1958 (Cth), ss.422B, 424A, 425 Federal Magistrates Court Rules 2001, r.44.12 |
| SAAP v Minister for Immigration and Multicultural and Indigenous and Ethnic Affairs (2005) 215 ALR 162 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 Craig v State of South Australia (1995) 184 CLR 163 Abalos v Australian Postal Commission (1990) 171 CLR 167 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 SZJVG v Minister for Immigration and Citizenship & Anor [2007] FMCA 718 Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 |
| Applicant: | SZKBM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 202 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 3 May 2007 |
| Date of Last Submission: | 3 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 June 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitor for the Respondents: | Ms Warner-Knight of Australian Government Solicitor |
ORDERS
The application and amended application are dismissed pursuant to Rule 44.12(1)(c).
The applicant is to pay to the first respondent $2,500 on account of its legal costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 202 of 2006
| SZKBM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 22 January 2007 for an order to show cause and seeking to review a decision of the Refugee Review Tribunal (“the Tribunal”) dated 7 December 2006 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. An amended application was filed on 20 March 2007.
On 16 February 2007 the respondents filed a Response opposing the application for an order to show cause on the grounds that:
1)The application has not raised an arguable case for the relief claimed [Rule 44.12(1)(a)].
2)In respect of ground one, the claim is largely not particularised. The particulars of information provided fall within the exception under section 424A(3)(b).
3)In respect of ground two, the applicant has not provided particulars of the issues it is claimed the Tribunal failed to ensure he understood.
4)In respect of grounds three, four and five, no particulars are provided.
The application
In his application, the applicant set out grounds as follows:
·There was an error of law in the Tribunal’s decision constituting a jurisdictional error;
·There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
Particulars:
(1)Ms. Kira Raif, the Presiding Member of the Tribunal (“the Presiding Member”) failed to comply with her obligations under s.424A of the Act.
(a)The Presiding Member has made a finding that “the applicant is not to be a credible witness”.
(b)In making the finding, the Presiding Member has not only considered the information which she invited me to comment in the Tribunal’s letter dated 8 November 2006 (“424A Invitation”), but also regarded the information raised in the Tribunal’s hearing on 5 December 2006 as the reason, or part of the reason, for affirming the decision under review.
(c)For example, while the Presiding Member made a finding of rejecting my claim in relation to my action of divulging the information about army movement, she has considered the information, that I did so to persons whom I did not have direct contact with or know very well, as a part of reason. Another example, while the Presiding Member made a finding of rejecting my claims in relation to my sufferings after the 1989’s movement, she has regarded the information that “the applicant initially stated that he did not know if his father was questioned and he later stated that his father was not questioned by the PSB”, as a part of reason.
(d)My claims regarding my involvement is 1989’s movement as well as my suffering after that is one of major bases in my protection application. However, the Presiding Member failed to consider my claims, properly and fairly.
(e)Under s.424A of the Act, 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; and the Tribunal must ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and the Tribunal must invite the applicant to comment on it.
(f)In my case, the Presiding Member failed to provide me, 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; and the Presiding Member failed to ensure, as far as is reasonably practicable, that I understand why it is relevant to the review; and the Presiding Member failed to invite me to comment on it.
(g)I might accept that the Presiding Member discussed some pieces of information with me at the hearing before the Tribunal. However, to my understanding, the Presiding Member, under s.424A of the Act, is obligated to provide me, in writing, particulars of any information the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and the Presiding Member is obligated to ensure, in writing, that I understand why it is relevant to the review; and the Presiding Member is obligated to invite me, in writing, to comment on it. It is apparently that simply discussing about relevant information with me orally at the hearing does not avoid the Presiding Member’s obligation to comply with s.424A(1) and (2) (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [110]).
(2)The Presiding Member failed to comply with its obligations under s.425 of the Act.
(a)Under s. 425 of the Act, the Tribunal must provide a genuine and good opportunity for 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.
(b)In my case, I do not think the Presiding Member has provided a genuine and good opportunity for me to give evidence in support of my claims. Particularly, the Presiding Member failed to ensure me to understand issues which would be in relation to her decision for affirming the decision under review; and she failed to invite me to present my arguments against the issues.
(3)An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs. In my case, the Tribunal has exceeded its powers and thus commits a jurisdictional error because it has identified a wrong issue, asked a wrong question, ignored relevant material, relied on irrelevant material or, makes an erroneous finding or reaches a mistake and conclusion in the way that has affected the exercise or purported exercise of the Tribunal’s power.
(4)The Presiding Member has, particularly, failed to consider documentary evidences or making a finding with bias.
(5)In summary, I have never ever agreed that my application has been assessed by the Tribunal fairly and carefully.
The amended application
In his amended application, the applicant set out the following grounds and particulars:
(1)Ms. Kira Raif, the Presiding Member of the Tribunal (“the Presiding Member”) failed to comply with her obligations under s.424A of the Act.
(a)The Presiding Member has made a finding that “the applicant is not to be a credible witness”.
(b)In making the finding, the Presiding Member has relied on two major parts of information as follows: -
· firstly, the information which the Presiding Member invited me to comment in the Tribunal’s letter dated 8 November 2006 (“424A Invitation”; and
· secondly, the information which has been misunderstood or misstated by the Presiding Member. For example, the Presiding Member made a finding of rejecting my claim in relation to my action of divulging the information about army movement, she has considered the information, that I did so to persons whom I did not have direct contact with or know very well, as a part of reason.
Another example, while the Presiding Member made a finding of rejecting my claims in relation to my sufferings after the 1989’s movement, she has regarded the information that “the applicant initially stated that he did not know if his father was questioned and he later stated that his father was not questioned by the PSB”, as a part of reason.
(c)Under s.424A of the Act, 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; and the Tribunal must ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and the Tribunal must invite the applicant to comment on it.
(d)It is apparently that the information which I have mentioned above is not the one:
· that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
· that the applicant gave for the purposes of the application; or
· that is non-disclosable information.
Instead, this is the information which has been misunderstood or misstated by the Presiding Member.
(e)However, the Presiding Member failed to provide me, 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; and the Presiding Member failed to ensure, as far as is reasonably practicable, that I understand why it is relevant to the review; and the Presiding Member failed to invite me to comment on it.
(f)I might accept that the Presiding Member discussed some pieces of information with me at the hearing before the Tribunal. However, to my understanding, the Presiding Member, under s.424A of the Act, is obligated to provide me, in writing, particulars of any information the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and the Presiding Member is obligated to ensure, in writing, that I understand why it is relevant to the review; and the Presiding Member is obligated to invite me, in writing, to comment on it. It is apparently that simply discussing about relevant information with me orally at the hearing does not avoid the Presiding Member’s obligation to comply with s.424A(1) and (2) (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [110]).
(2)The Presiding Member failed to comply with its obligations under s.425 of the Act.
(a)Under s. 425 of the Act, the Tribunal must provide a genuine and good opportunity for 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.
(b)In my case, I do not think the Presiding Member has provided a genuine and good opportunity for me to give evidence in support of my claims. Particularly, the Presiding Member failed to ensure me to understand issues which would be in relation to her decision for affirming the decision under review; and she failed to invite me to present my arguments against the issues.
(3)The Presiding Member failed to consider my claims, properly and fairly.
(a)My claims regarding my involvement in 1989’s movement as well as my suffering after that is one of major bases in my protection application. However, the Presiding Member failed to consider my claims, properly and fairly.
(4)An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs. In my case, the Tribunal has exceeded its powers and thus commits a jurisdictional error because it has identified a wrong issue, asked a wrong question, ignored relevant material, relied on irrelevant material or, makes an erroneous finding or reaches a mistake and conclusion in the way that has affected the exercise or purported exercise of the Tribunal’s power.
(5)The Presiding Member has, particularly, failed to consider documentary evidences or making a finding with bias.
(6)In summary, I have never ever agreed that my application has been assessed by the Tribunal fairly and carefully.
Findings as to the grounds of the applications
The applicant stated that his amended application replaces his application (Transcript 3, line 45). The Court finds that the application is subsumed by the amended application and deals with the claims in the amended application.
Ground one alleges that s.424A was breached. Particular 1(a) complains about the finding of the Tribunal that the applicant is not a credible witness. It is clear from the decision of the Tribunal that it’s reasons for affirming the decision of the delegate was that it did not believe the applicant. As stated in W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 per Tamberlin and R.D. Nicholson JJ:
64. The tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ at [64]:
If the trial judg’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; 96 ALR 354. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.
The Court does not find that the Tribunal failed to use or palpably misused its advantage or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable. The Court does not “think that the probabilities of the case are against the findings on credibility”: those findings must stand. This particular is rejected.
Particular 1(b) complains that in making the adverse credibility finding the Tribunal relied on:
·Information that the applicant was invited to comment on in the s.424A letter, and
·Its finding rejecting the applicant’s claim of divulging information about movements of the army, and its finding that the applicant disclosed that information to people he did not know very well, and
·Its finding rejecting the applicant’s claim relating to his sufferings after the 1989 movement, and regarding the information that:
…the applicant initially stated that he did not know if his father was questioned and he later stated that his father was not questioned by the PSB, as part of reason.
Insofar as the Tribunal relied on information that the applicant was invited to comment on in the s.424A letter, the Court finds no error.
The Tribunal found that it was implausible that the applicant would divulge information about army movement to a person with whom he claimed he did not have very direct contact (Decision 15.6). The Tribunal there found that it did not accept that the applicant released the information about army movement to the three people at the college (Decision 15.8). Those were findings of fact properly open to the Tribunal on the material before it. It was open to the Tribunal to rely on those findings in reaching its conclusion that the applicant “was not truthful in his evidence to the Tribunal” (Decision 16.1). It was open to the Tribunal not to accept that the “applicant was targeted or persecuted by the Chinese authorities because of his involvement in the 1989 pro-democracy movement…” (Decision 16.3).
The applicant complains that the Tribunal regarded the information that “the applicant initially stated that he did not know if his father was questioned, and he later stated that his father was not questioned by the PSB”, as part of reason (sic)” for the decision (Decision 15.9). Insofar as the Tribunal relied on that information, it was provided by the applicant for the purpose of the application and therefore covered by the exemption in s.424A(3)(b). Insofar as it involves determinations reached by the Tribunal, they are not “information” for the purposes of s.424A(1): SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [206] and the cases referred to therein.
Particular 1(c) states the requirements under s.424A and raises no ground of review.
Particular 1(d) sets out the exclusions in s.424A(3) and claims that they do not cover the information referred to by the applicant, which has been “misunderstood or misstated by the Tribunal”. The applicant has not tendered a copy of the transcript of the hearing by the Tribunal. The applicant must prove his case (Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170; Luu & Anor v Renevier (1989) 91 ALR 39 at 45) and has failed to do so. This claim is rejected.
Particular 1(e) alleges a failure to comply with s.424A, by failing to provide particulars of information and failing to ensure that the applicant understood its relevance to the review, and failing to invite the applicant to comment on it.
The decision of the Tribunal shows that a s.424A letter was sent to the applicant (Decision 5.6 and 12.7), which raised information that may be the reason or part of the reason for affirming the decision under review. Exhibit R1 is a copy of the letter. The relevance of the information was set out by the Tribunal, and the applicant was invited to respond. The applicant responded on 22 November 2006 (Exhibit R2) (Decision 5.8) and gave evidence before the Tribunal on 5 December 2006 (Decision 6.3). This particular is rejected.
Particular 1(f) accepts that the Tribunal “discussed some pieces of information but failed to provide it in writing”. The Court finds that the reason for the decision of the Tribunal was its adverse findings of credibility of the applicant. Such reason is not “information” for the purpose of s.424A. No breach of s.424A has been established: that ground is rejected.
Ground two particulars (a) and (b) allege a failure to comply with s.425 of the Act. The applicant was invited to the hearing by letter dated
7 November 2006 (Exhibit R3). The applicant attended the hearing on 5 December 2006 (Decision 6.2). The Tribunal had an extensive discussion with the applicant about his claims (Decision 5.10 -12.10). The Court finds no breach of s.425. Both these particulars are rejected.
Grounds three alleges a denial of natural justice and bias. Section 422B of the Act applies to this application. Therefore Division 4 of Part 7 of the Act is an exhaustive statement of the natural justice hearing rule for the application. There was no breach of s.424A or 425. No other provision in Division 4 was breached. That claim is rejected.
As to bias, the Court adopts the statement in paragraph 11 of the decision of this Court in SZJVG v Minister for Immigration and Citizenship & Anor [2007] FMCA 718 as follows:
Ground 1 alleges bias. The Court accepts the submission by the first respondent that “To establish bias the applicant would have to show that the Tribunal ‘acted dishonestly, arbitrarily, or capriciously”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [59]. “The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27].
Nothing has been put to establish bias (actual or a reason for apprehended bias). The Court rejects this claim.
Ground three(a) claims that the applicant’s “involvement in 1989’s movement as well as my suffering after that” were not considered properly and fairly by the Tribunal. The decision of the Tribunal shows that it considered the applicant’s claims to be involved with the 1989 movement and found that he “did not participate in any demonstration or any other activities related to the movement in 1989)” (Decision 15.5). The Tribunal “did not accept that the applicant was targeted or persecuted by the Chinese authorities because of his involvement in the 1989 pro-democracy movement…” (Decision 16.2). The Tribunal therefore considered and dealt with those claims by making findings of fact properly open to it on the material before it. Ground 3(a) is rejected.
Ground four alleges that the Tribunal “identified a wrong issue, asked a wrong question, ignored relevant material, relied on irrelevant material or made and erroneous finding.” Nothing has been put to establish this ground. It is rejected.
Ground five alleges that the Tribunal failed to consider “documentary evidences” (sic) or made a finding with bias. If the documents referred to are the two untranslated documents handed to the Tribunal immediately before the hearing, they were considered by the Tribunal (Decision 5.10 and 18.2). The Tribunal decided, as it was entitled to do, to give no weight to those documents as it could not be satisfied that the documents were not obtained at the request of the applicant (Decision 18.4). As to the allegation of bias, the Court refers to and repeats its reasons under ground three, and rejects the allegation of bias. The Court rejects ground five.
Ground six alleges that the applicant’s claim was not assessed by the Tribunal fairly and carefully. Nothing has been put to establish this ground: it is rejected.
The applicant raises a general allegation in paragraphs 15 and 16 that he was denied natural justice. The Court repeats its reasons in paragraph 16 above and rejects this claim.
Conclusion
The Court finds that the respondents have shown cause why an order for the relief claimed should not be made.
Accordingly, the application and amended application are dismissed pursuant to Rule 44.12(1)(c).
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Sarah James
Date: 31 May 2007
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