SZKEQ v Minister for Immigration - [2007] FMCA 678

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKEQ v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 678

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 474; pt.8 div.2

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant:

SZKEQ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG446 of 2007

Judgment of:

Emmett FM

Hearing date:

1 May 2007

Date of last submission:

1 May 2007

Delivered at:

Sydney

Delivered on:

17 May 2007

REPRESENTATION

Applicant appearing on his own behalf

Counsel for the Respondent:

Mr J. Smith

Solicitors for the Respondent:

Ms E. Warner Knight, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG446 of 2007

SZKEQ

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 (“the Tribunal”) dated 23 January 2007 and handed down on 1 February 2007.
The applicant was born on 2 March 1982 and claims to be from the People’s Republic of China (“the PRC”) and of Han ethnicity and Buddhist faith (“the Applicant”).
The Applicant arrived in Australia on 14 May 2006, having illegally departed from Fu Qing on a false passport issued under an alias with a false date of birth of 11 March 1981, and a transit visa issued on 28 October 2005 in Auckland, New Zealand.
On 16 May 2006, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant claimed that he feared persecution by the PRC authorities. He claimed that his family’s crops had been destroyed and that he had filmed the destruction with a video camera which was subsequently taken and returned empty. He also claimed that he had been beaten and repeatedly detained by the PRC authorities following an attempt to submit a petition.
On 14 August 2006, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 5 September 2006, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided copies of the following translated materials:
i)Birth Certificate;
ii)A statement from Mr Li in relation to the review application;
iii)Three local Chinese newspaper articles, dated 2-3 September 2006, 22-23 July 2006 and 7 August 2006;
iv)Two internet reports released by Human Rights Watch.
On 23 January 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 12 February 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceeding

On 31 October 2006, the Tribunal invited the Applicant to come to a hearing on 30 November 2006.
The representative of the applicant wrote to the Tribunal indicating the applicant’s intention to attend the hearing and enclosed a Response to Hearing Invitation Form, a compact disc, further reports obtained from the internet relating to the persecution of petitioners in the PRC.
The Tribunal noted that it had before it the Tribunal case file 060759802 and the Department case file CLF2006/055355’s file. Copies of the passport in a false name on which the Applicant claims he entered Australia were also received at the hearing.
The Applicant gave oral evidence before the Tribunal in which the Applicant expanded upon his written claims.
On 6 December 2006, the Tribunal wrote to the Applicant identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment upon it. The letter identified information contained in (i). a statement dated 16 May 2006 provided by the Applicant in support of his protection visa application: (ii). a statement provided to the Tribunal dated 15 October 2006, including the petition referred to by the Applicant; and (iii). evidence given by the Applicant at the hearing before the Tribunal on 30 November 2006. The letter identified various differences in the information provided by the Applicant in those two statements and his oral evidence.
On 8 December 2006, the Applicant’s representative responded to the Tribunal’s request, indicating that the Applicant was preparing a response to the letter of 6 December 2006, and, on 15 December 2006, the Department received a letter from the Applicant’s representative attaching a statement by the Applicant, dated 13 December 2006, in which he attempted to address this information.
In its decision, the Tribunal identified with particularity the claims made by the Applicant in each of the two statements referred to above and identified with particularity the evidence given by the Applicant at the hearing. The Tribunal also noted that the Applicant’s explanation, about matters referred to in each of his statements and his oral evidence at the hearing, differed from his explanation provided in his letter of response dated 13 December 2006.
The Tribunal found that the Applicant’s evidence of events changed to explain inconsistencies. The Applicant’s varying accounts of his claims led the Tribunal to conclude that the Applicant was not a truthful witness and that both of the statements referred to above lacked credibility. The Tribunal rejected the Applicant’s claims of being the organiser of the petition, and found that it was the Applicant’s father, rather than the Applicant, who was the organiser and who went to Beijing to lodge the petition. The Tribunal did not accept that the Applicant was detained in September 2005 or October 2005 by police or that police were attempting to locate and arrest him from January 2006.
The Tribunal found that the evidence before it suggested that it was the Applicant’s father in whom the police were most interested. The Tribunal noted that, in making these findings, it had had regard to statements of three villagers provided by the Applicant in support of his contentions, however, found those statements to be “lacking in any detail”.
The Tribunal concluded that the Applicant did not have a well-founded fear of persecution for a Convention reason and was not satisfied that there is a real chance that the Applicant will suffer persecution for a Convention reason either now or in the reasonably foreseeable future if he were to return to the PRC.
Accordingly, the Tribunal affirmed the decision under review.

The proceeding before this Court

The Applicant was unrepresented before this Court although had the assistance of an interpreter.
The Applicant sought to read an affidavit sworn by him on 22 April 2007 annexing a series of documents obtained by him from the internet about human rights abuses in the PRC and also a letter of submission. The documents relating to the abuses of human rights obtained from the internet were objected to by the First Respondent on the basis that they were not before the Tribunal and therefore were not relevant to the issue before this Court as to whether or not the decision of the Tribunal was affected by jurisdictional error.
The Applicant did not suggest this was material that he was unable to present to the Tribunal. Further, I note that several of the documents post-date the hearing of the Tribunal. On the grounds of relevance, that part of the Applicant’s affidavit was rejected.
The letter of submission, which formed annexure 2 to the Applicant’s affidavit, was read by the Court as a submission from the Applicant in support of his application. The Applicant stated in his written submissions that he requested the Court to have a copy of the transcript of the Tribunal hearing available at this hearing. This Court drew the Applicant’s attention to the directions made on 1 March 2007 which contained, inter alia, the following:
“3.The applicant have leave to file and serve an amended application giving complete particulars of each ground of review relied upon by 3 April 2007.
4.The applicant file and serve any affidavit containing additional evidence to be relied upon, including any transcript of a tribunal hearing, by 3 April 2007.
6.Other than the Green Book, all evidence relied upon by the parties shall be presented by way of affidavit. Evidence of a Tribunal hearing shall be presented as a transcript verified by affidavit, and a tape recording shall not be received without the leave of the Court obtained prior to the hearing.”
At the hearing before this Court, the Applicant sought further time to provide a copy of the transcript. However, an adjournment was refused on the basis that there had been ample time provided to the Applicant to obtain a transcript and the opportunity to do so was clearly identified for him at the directions hearing on 1 March 2007.
The Applicant confirmed that he relied on the grounds identified in his application filed on 12 February 2007. Those grounds are in the following terms:
“1. The Tribunal member has not listened and assessed my claims with an objective and fair process. Rather, she has been preoccupied with a biased subjective personal view. Therefore, I have been deprived of natural justice in this application. This is evidenced in paragraph 83 on page 16 of 16 of the decision in which the member concluded that “The Tribunal does not accept, on the evidence … because of his political opinion … his religion or for any convention reason.” As I had never mentioned anything related to my religious belief in my application. The member simply included everything in order to generally cover everything just for the convenience of rejecting my claims.
2. The member of RRT repeatedly compared my claims contained in my final statement submitted to DIMA, the second statements to the RRT and the evidence given by me during the hearing. She repeatedly complained that the evidence given during the hearing was not provided in the second RRT; and that the evidence given in the second statements to RRT were not given in the first statement to DIMA. Therefore, she concluded that I was not a credible or truthful witness. Please refer to paragraphs 76-81 from pages 14 – 16 of 16 of the RRT decision. In fact, these comparisons and comments were used throughout the whole documents. I believe that it is for the same reasons that the Australian judicial system has included a review process so that any discrepancy could be addressed and explained in the review by the appellant who may even provides further and additional evidence that was not submitted before. As a newly arrived person to a new country and because I only had three days to lodge my initial application to DIMA for protection, I was in a big rush. Hence, I had only provided part of my claims to DIMA who did not invite me to explain their query before they refused. When the matter was with RRT, I thought I was able to provide further information and explanation to the possible discrepancy, the member simply said the explanation could not be trusted because they were not in the first statements. I think this is not right. The member has not applied the principle of justice to me fairly.
3. As due to the reasons stated above, I believe that the member of my case has been mentally preoccupied with a prejudiced decision already even before the hearing. Therefore, both DIMA and RRT have erred in laws.”
Ground 1 alleges that the Tribunal was biased.
At the hearing before this Court, ground 1 was read to the Applicant and he was invited to make submissions in support of those allegations. The Applicant stated that the Tribunal had asked irrelevant questions and intentionally interrupted him. Ground 1 itself relies on a particular identifying a part of the Tribunal’s decision. The Applicant’s allegation about the Tribunal asking irrelevant questions and intentionally interrupting him was made for the first time at the hearing before this Court. Plainly such an allegation would require evidence, at least in the nature of the transcript. As referred to above, there had been ample opportunity for the Applicant to provide both an amended application to assert that particular and evidence in support of any such allegation.
The particular identified in ground 1 complains that the Tribunal’s rejection that the Applicant had suffered persecution because of, inter alia, his religion exhibited bias on the part of the Tribunal member because the Applicant had not made any claim about a fear of persecution because of his religion. The Applicant appeared to be alleging that the Tribunal member was seeking to cover any possible claim by the Applicant by that finding “just for the convenience” of rejecting the Applicant’s claims.
A fair reading of the Tribunal’s decision makes it clear that the Tribunal considered closely the various claims made by the Applicant. The Tribunal gave the Applicant a s.424A notice in respect to inconsistencies that may be part of the reason the Tribunal might affirm the decision under review and took into account the Applicant’s response to that notice.
The mere identification and consideration by the Tribunal of all categories of possible Convention related persecution and the Tribunal’s rejection of those categories cannot, on a fair reading of the decision as a whole, reasonably lead to a conclusion that the Tribunal approached its task with a mind not open to persuasion.
The Applicant has not established by credible evidence that the Tribunal had so prejudged the matter as to be incapable of changing its mind whatever evidence or arguments may be presented (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 per Gleeson CJ and Gummow J).
Accordingly, ground 1 is rejected.
Ground 2 essentially disagrees with the Tribunal’s findings of adverse credibility in respect of the Applicant.
The First Respondent submitted that at the heart of the Tribunal’s affirming the decision under review was its adverse credibility findings in respect of the Applicant’s evidence. Essentially, these adverse credit findings were based on the various inconsistencies and discrepancies with the Applicant’s evidence and are referred to above in these Reasons. The Tribunal’s findings in respect of the Applicant’s credibility were open to it on the evidence and material before it and for which it provided reasons.
Disagreement with the findings and conclusions of the Tribunal, in the circumstances, is no more than an attempt by the Applicant to have this Court review the merits of the Tribunal’s decision. That course is not open to this Court (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).
Accordingly, ground 2 is rejected.

Conclusion

The Tribunal complied with its statutory obligations in respect of the making of its decision, including the conduct of its review. 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.
Accordingly, the proceeding before this Court, commenced by way of application filed on 12 February 2007, is dismissed.

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: 14 May 2007