SZKBS v Minister for Immigration
[2007] FMCA 711
•2 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKBS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 711 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of the People's Republic of China claiming fear of persecution on account of political opinion – credibility – bias – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 425, 474 |
| VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 NAMW v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 140 FCR 572 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547 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 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] 150 FCR 214 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 SZHXW v Minister for Immigration & Citizenship [2007] FCA 368 SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 |
| Applicant: | SZKBS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 223 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 2 May 2007 |
| Date of last submission: | 2 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 2 May 2007 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr Mitchell |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $4,300.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 223 of 2007
| SZKBS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. The decision, which was signed on 7th December and handed down on 21st December 2006, affirmed a decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa. The Applicant seeks, essentially:
a)a declaration that the Tribunal decision was invalid and contrary to law;
b)an order in the nature of certiorari quashing the Tribunal decision; and
c)an order in the nature of mandamus remitting his application to the Refugee Review Tribunal for determination in accordance with law.
Background
The background to this matter is that the Applicant is a citizen of the People's Republic of China who arrived in Australia on 8th May 2006 and applied for a Protection (Class XA) visa on 8th June in that year. His application was refused on 11th August 2006 and on
13th September. The Applicant applied to the Refugee Review Tribunal for a review of that decision. No additional material was provided to the Tribunal with the application for review.
The Tribunal wrote to the Applicant on 4th October 2006 inviting him to attend a hearing to give oral evidence and present arguments in support of his claims on 16th November 2006. The Applicant attended the hearing on that day. He provided to the Tribunal a copy of his passport. The Applicant gave evidence to the Tribunal with the aid of an interpreter in the Mandarin language. He claims a well-founded fear of persecution on the basis of his involvement in antigovernment protests and set out a history of having come under unfavourable notice, as did his brother-in-law who he says died in the custody of the authorities.
The Tribunal handed down its decision on 21st December 2006. A copy of the decision record can be found at pages 76 through to 95 of the Court Book. In that decision record the Tribunal sets out a summary of the Applicant's claims at pages 79 through to 81.
The Tribunal sets out a summary of the evidence given at the Tribunal hearing on pages 81 through to 89 of the Court Book. That summary includes questions by the Tribunal and challenges by the Tribunal Member to the Applicant about a number of aspects of his evidence.
The Tribunal’s findings and reasons
The Tribunal's findings and reasons can be found at pages 89 through to 95 of the Court Book. The Tribunal was satisfied that the Applicant was a national of China, which finding was supported by the Applicant's Chinese passport sighted at the hearing. The Tribunal, however, was not satisfied with the Applicant's credibility. The Tribunal said at page 90 of the Court Book:
His evidence at hearing was internally inconsistent, and his evidence on the whole was implausible and farfetched. The Tribunal finds that the applicant has not been truthful with the Tribunal and cannot be satisfied that he has a well-founded fear of persecution for any Convention reason upon return to China.
The Tribunal then set out a summary of its views of the various aspects of the Applicant's evidence and its negative view of the Applicant's credibility in respect of those aspects of his evidence under the following headings:
a)The Applicant's employment;
b)The Applicant's passport and export business;
c)The antigovernment protest;
d)The Applicant's documents; and
e)A summary of the findings.
In respect of the Applicant's employment, the Tribunal noted at page 90 of the Court Book that the Tribunal asked the Applicant about his last paid employment in China and set out what the Tribunal said the Applicant's evidence was. The Tribunal found:
The fact that the applicant is clearly willing to manipulate and change his evidence when needed suggests that he has not been truthful with the Tribunal. The applicant's inconsistency with regard to his employment and his willingness to change his evidence leads the Tribunal to find that he is not a reliable witness in this regard.
In respect of the Applicant's passport and his export business, the Tribunal found the Applicant's evidence with regard to the reasons that he obtained his passport in 2004 to be both internally inconsistent and to lack credibility.
As to the antigovernment protest, the Tribunal noted that the Applicant's claims and evidence were to the effect that he feared upon returning to China because of his involvement with an antigovernment protest, but the Tribunal had grave adverse credibility concerns about those claims. The Tribunal then set out on pages 90 and 91 what the Tribunal's grave credibility concerns were.
As regard to the Applicant's documents, at page 93 of the Court Book the Tribunal said:
The Tribunal has found the applicant to be lacking in credibility with regard to his employment, matters surrounding the issue of his passport in 2004 and the “export business”, and his anti-government activities. The Tribunal has further found that his claims are inconsistent with the independent evidence. The Tribunal has found the applicant to have been untruthful to the Tribunal and gives no weight to his claims.
The Tribunal's summary referred to the significant adverse findings in respect of the Applicant's credibility to the extent that the Tribunal could not accept as credible the Applicant's claim that the authorities in China had any ongoing interest in him whatsoever.
The Tribunal affirmed the delegate's decision not to grant the Applicant a protection visa.
The application for judicial review
The Applicant commenced proceedings for judicial review by means of an application and an affidavit filed on 23rd January 2007. The Applicant filed an amended application on 16th April 2007. In that amended application the Applicant claims an error of law constituting jurisdictional error and a procedural error constituting an absence of natural justice. He claims in particular a failure to comply with the Tribunal's obligations under s.424A of the Migration Act, a failure to consider his claim properly and fairly and a claim that the Tribunal ignored important evidence in his case, misunderstood his claim and made a mistake in relation to important finding of fact.
The Applicant claims bias on behalf of the Presiding Member. He further claims a failure to comply with the Tribunal's obligations under s.425 of the Migration Act. In summary, the Applicant claims that he never agreed that his application has been assessed by the Tribunal fairly and carefully. The Applicant provides particulars of those claims in his amended application and made an oral submission to the Court in support of those claims.
For the First Respondent Minister, Mr Mitchell of counsel has prepared a written outline of submissions and made an oral submission to the Court in reply to the applicant's submissions. For the First Respondent it is contended first of all that the Tribunal's findings were based on an appraisal of the Applicant's evidence, his passport and independent country information and the Tribunal was not required to put this information or the passport to the Applicant in accordance with s.424A(1) because it was information exempted by s.424A(3)(b) of the Act.
The Tribunal was not required to put its appraisals of the Applicant's testimony to the Applicant as they were not information for the purpose of s.424A(1). He refers the Court to VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [24]. Further, the Tribunal was not required to provide the Applicant with a copy of the independent country information because that information was exempted by reason of sub-section 424A(3)(a) (see NAMW v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 140 FCR 572 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92).
The First Respondent submits that the Applicant's second ground is essentially a challenge to the correctness or fairness of the factual findings made by the Tribunal.
Third, in respect of the allegations of bias contained in grounds 3 and 4, Mr Mitchell submits that there is no transcript in evidence and in the absence of a transcript it should not be inferred that the Tribunal was biased in the manner in which the hearing was conducted. I am referred to the decision in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [43]. Further, he submits that the absence of a transcript does not support any finding that there was a breach in some way of s.425 of the Migration Act.
Dealing with the Applicant's claims, I am conscious first of all that the overwhelming thrust of the Tribunal's decision is a finding that the Applicant's evidence was not credible. It is trite law that credibility is a matter for the administrative decision-maker, in this case the Tribunal. The Tribunal found the Applicant's evidence to be implausible and inconsistent and I agree with the submission that this provided a rational foundation and a logical basis for the Tribunal's adverse credibility findings (see Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547 at 552 and 558 to 559). The credibility findings were factual findings and as there is evidence upon which it was open to the Tribunal to make those factual findings, a finding in respect of credibility is not open to challenge (see Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]).
The Applicant claimed that the inconsistencies upon which the Tribunal relied making its findings adverse to his credibility were inconsistencies about his employment, his passport, the antigovernment protest and his documentary evidence. It is clear that all of this information was information supplied to the Tribunal by the Applicant. It was evidence given by the Applicant at the hearing or, in the case of the passport, a document provided by the Applicant to the Tribunal for the purpose of his application for review.
There is no obligation under sub-s.424A(1) for the Tribunal to give to the Applicant in writing his own evidence to the Tribunal for the purpose of the application for his comments. That information is exempt from the application of s.424A by the operation of sub-s.424A(3)(b). It is quite correct that the Tribunal's appraisal for the Applicant's own evidence does not constitute or do not constitute information for the purpose of s.424A. The Applicant has referred the Court to the decisions in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 and SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] 150 FCR 214 at [110], but in my view neither of those cases points to any breach of s.424A by the Tribunal.
As to the Applicant's claim that the Tribunal failed to consider his claim properly and fairly and ignored important evidence or misunderstood his claim or made a mistake in relation to an important finding of fact, there is no evidence that the Tribunal ignored relevant evidence or failed to consider the essential elements of the Applicant's claim. Quite the reverse in fact, the Tribunal's decision involves a thorough overview of the evidence and it is clear that in the hearing the Tribunal asked the Applicant about aspects of his evidence and challenged the Applicant on numerous points where the Tribunal had problems with his credibility.
There is an allegation of bias. It is well established in decisions such as SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 to which I have previously referred and SZHXW v Minister for Immigration & Citizenship [2007] FCA 368 and also SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 that an allegation of bias is a serious application which should not be made lightly and should be clearly alleged and clearly proved.
There is no evidence of bias. It is well established that it will be a rare and extreme circumstance that a lack of good faith on the part of the administrative decision-maker will be apparent by reference only to the reasons for the decision themselves (see SBBF v Minister for Immigration & Multicultural & Indigenous Affairs at [16]). In this case there is no evidence of bias.
As to a claim that the Tribunal failed to comply with s.425 of the Migration Act, there is no evidence of that. The Tribunal did provide an opportunity for the Applicant to appear before the Tribunal. The Applicant gave evidence and presented arguments relating to his claims. The Tribunal challenged him on aspects of his arguments and the Applicant was given the opportunity to comply. The Tribunal provided an interpreter as requested by the Applicant. The Tribunal gave the Applicant plenty of notice to attend the hearing. There is no breach of s.425. There is no failure by the Tribunal to consider important aspects of the Applicant's evidence.
The fact is that the Tribunal did not believe the Applicant's evidence. It is not up to the Tribunal to disprove the Applicant's case. The obligation on an applicant for a visa is to satisfy the Minister, or in this case the Tribunal, that the Applicant meets the criteria for a visa. The Tribunal in this case was not satisfied that the Applicant gave credible evidence and therefore was not satisfied that the Applicant met the criteria for a visa and in particular the necessary criterion under sub-s.36(2) to grant a protection visa.
I am mindful of the fact that the Applicant is not legally represented but my independent reading of the Tribunal decision does not indicate any arguable case for any other jurisdictional error not referred to by the Applicant. It follows that the Tribunal decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. Under sub-s.474(1) of the Act the Tribunal decision is not therefore subject to declaration or orders in the nature of certiorari or mandamus. The application will be dismissed.
There is an application for costs on behalf of the First Respondent Minister in the sum of $4,300.00 which I understand to be inclusive of counsel's fees. In my view that is an appropriate order to be made. The Applicant has been wholly unsuccessful in his claim and the amount sought is an appropriate figure. I propose to make that order. I note that I have previously made an order changing the name of the Respondent Minister to Minister for Immigration & Citizenship.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 11 May 2007
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