SZKFH v Minister for Immigration

[2007] FMCA 2076

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKFH v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2076

MIGRATION – Visa – Protection Visa – application for review of Refugee Review Tribunal decision – no reviewable error.

Migration Act 1958 (Cth), s.91R, 424A

Minister for Immigration and Multicultural & Indigenous Affairs v Jia Legeng (2001) 205 CLR 507 531
NAAI v Minister for Immigration and Multicultural & Indigenous Affairs (2000) FCA FC 10
SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609

Applicant: SZKFH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 509 of 2007

Judgment of: Scarlett FM

Hearing date: 3 December 2007

Date of Last Submission: 3 December 2007

Delivered at: Sydney

Delivered on: 3 December 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: In person

Counsel for the Respondents: Nil

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 509 of 2007

SZKFH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The applicant is a citizen of the People's Republic of China. He asks the Court to set aside a decision made by the Refugee Review Tribunal not to grant him a protection visa. He also asks the Court for a writ of mandamus sending his application for a visa back to the Tribunal for rehearing and a writ of prohibition against the Minister, who is the first respondent to the application, to prevent any action being taken in reliance upon the Tribunal decision. I have explained to the applicant that in order for the Court to set aside the Tribunal decision and make the orders that he seeks it will be necessary for the Court to be satisfied that the decision is affected by jurisdictional error.

2. The applicant claims that the Tribunal did fall into error. He has made allegations of bias and an allegation that the decision was made based on wrong independent information. He has claimed that the Tribunal referred to irrelevant independent information and that the letter sent to him by the Tribunal did not conform with the requirements of s 424A of the Migration Act.

3. The background to this matter is that the applicant arrived in Australia on 8 July 2006. On 11 July he applied for a Protection (class XA) visa. This application for a visa was refused on 15 August 2006, so the applicant then sought a review by the Refugee Review Tribunal. The applicant applied to the Tribunal in an application received on 18 September 2006. The applicant did not provide any further documentary evidence with his application. The Tribunal wrote to the applicant on 28 September 2006 and invited him to attend a hearing. That hearing was on 24 November 2006. The applicant replied to Tribunal indicating that he wished to attend the hearing and that he would require an interpreter in the Mandarin language.

4. The applicant attended the hearing on 24 November 2006. He gave evidence with the assistance of a Mandarin interpreter.  He claimed that he had applied for a protection visa because he was learning Falun Gong and he thought he might be arrested. He considered that the practice of Falun Gong would be good for his health. He told the Tribunal that, whilst not actually practicing Falun Gong, he had heard about transplant of organs from Falun Gong practitioners and he feared being arrested. He told the Tribunal that he had been working for a company, and on one occasion was arrested and detained for seven days. He told the Tribunal that he was not practicing Falun Gong in Australia because he did not have time and did not know where to go.  He told the Tribunal he had not had any difficulty leaving China, but he believed that the police would look for him and he had paid a lot of money to leave China.

5. After the hearing the Tribunal wrote a letter to the applicant dated 27 November 2006. In the Tribunal decision, the date of the letter is wrongly given as 28 November. That letter told the applicant that the Tribunal had information that would, subject to any comments he made, be the reason or part of the reason for deciding that he was not entitled to a protection visa. The letter set out particulars of the information to which the Tribunal referred. It consisted of answers to questions in his application for a protection visa and questions about the evidence that he gave to the Tribunal at the hearing on 24 November 2006. The letter pointed out that there were inconsistencies between the applicant's evidence and the information on his application for a protection visa and invited him to comment on that information. The letter said:

   These inconsistencies could lead the Tribunal to find that you are not telling the truth in relation to your Convention‑related claims[1].

   [1] See Court Book at page 54

6. The applicant replied to the Tribunal's letter on 20 December 2006. In that letter he said:

   I did not remember that I made so many inconsistent information  between what I mentioned at my initial application and at the hearing.  Maybe I was too nervous and made some mistakes at my hearing.  What I mentioned at my application is correct[2]. 

   [2] See Court Book at page 55

7. The Tribunal handed down its decision on 16 January 2007 a copy of the Tribunal's decision record appears at pages 60 through to 68 of the Court Book. The Tribunal set out in the decision the applicant's evidence in his protection visa application and a summary of his oral evidence to the Tribunal at the hearing. The Tribunal referred to the letter written to the applicant and quoted his reply. The Tribunal considered independent country information about applications for passports and exit permits. This information was taken from a report from the Department of Foreign Affairs and Trade dated 15 January 2003. The Tribunal also referred to other information about the issue of passports for Chinese citizens, which was set out in a Department of Foreign Affairs & Trade country information report dated 12 February 1998. The Tribunal's findings and reasons are set out on pages 66 through to 68 of the Court Book.

8. The Tribunal was satisfied that the applicant was a citizen of the People's Republic of China. However, the Tribunal formed a firm view that the applicant lacked credibility and that his material claims could not be accepted. The Tribunal set out contradictions and inconsistencies in the plausibility of various aspects of his claim and referred to the applicant's response in his reply to the s 424A letter. The Tribunal went on to say this:

   The applicant in his evidence demonstrated that he knew nothing about the practice of Falun Gong.  He has not engaged in any Falun Gong activities since coming to Australia, which indicates that he is not interested in Falun Gong.  The Tribunal does not accept the applicant is a Falun Gong practitioner.  The Tribunal does not accept that he was involved in Falun Gong activities in China or that he was arrested, detained, interrogated and mistreated or that the Chinese authorities are adversely interested in him.  The Tribunal is satisfied that the applicant will not engage in any Falun Gong activities in the reasonably foreseeable future should he return to China[3]. 

   [3] See Court Book at page 67

9. The Tribunal was not satisfied that the applicant had a well‑founded fear of persecution for a Convention reason, if he were to return to China, and affirmed the delegate's decision not to grant a Protection (class XA) visa.

10. The applicant commenced proceedings in this Court on 15 February 2007. On 17 May 2007 he filed an amended application, and he relies on that document. He sets out three numbered grounds of review in his amended application:

    i)The Tribunal did not consider my application for a protection in accordance with s 91R of the Migration Act because of the bias against me, and the decision was made based on some wrong independent information. The Tribunal did not believe my claims based on assumption, not evidence.

    ii)The Tribunal referred to some irrelevant independent information for the consideration of my application. The country information was hearsay.

    iii)The Tribunal s 424 letter did not conform with the requirements of s 424A.

11. The applicant did not file a written outline of submissions, but attended Court and made oral submissions. He claimed that the Tribunal was biased because it did not conduct any investigations into his claims, and he claimed that the Tribunal's letter to him did not comply with s 424A of the Migration Act because the Tribunal did not consider the information he gave in reply. He said the Tribunal did not consider his explanations before the Tribunal reached a conclusion. He claimed the Tribunal could not understand his claims correctly and did not take into account relevant independent information to give consideration to his application. He claimed the Tribunal did not collect enough independent information.

12. The first respondent Minister filed a written outline of submissions on 23 November 2007. The Minister submits that the Tribunal did consider the applicant's application in accordance with s 91R of the act and expressly considered the definition of "refugee" and applied the correct principles. The Minister submits that there was no evidence of bias, pointing out that bias is a serious allegation which must be firmly and distinctly made and clearly proved, pointing to the decision in Minister for Immigration & Multicultural Affairs v Jia Legeng[4] . The Minister submits that it is not a proper ground for the applicant to assert the Tribunal's decision was based on an assumption and pointed out that the Tribunal clearly based its decision on adverse credibility findings as a result of the applicant's oral evidence. Findings on credibility are matters of fact for the Tribunal alone and should not be disturbed by the Court.

    [4] (2001) 205 CLR 507531

13. As to the claim that the Tribunal referred to irrelevant independent information, the Minister points out that the applicant did not provide any particulars in respect of that ground and that the choice in assessment of country information is a factual matter for the Tribunal, see NAAI v Minister for Immigration & Multicultural  & Indigenous Affairs[5] . The Minister also submitted that the applicant did h not provided any particulars in respect of the claim that the s 424A letter did not conform with requirements of s 424A and submitted that it did. In any event, Ms Palmer for the Minister submitted that the Tribunal may not have been required to send this letter, given recent developments in the law affected by SZBYR v Minister for Immigration & Citizenship[6]. The Tribunal's adverse credibility findings were based on inconsistencies between the evidence given by the applicant at hearing and the applicant's written statement accompanying his protection visa application. Those inconsistencies did not attract the operation of s 424A(1) because they are not information for the purpose of the section. The applicant's statement did not enliven s 424A(1) because it could not be considered part of the reason for affirming the decision under review.

    [5] (2000) FCA FC 10

    [6] (2007) 235 ALR 609

14. On reading the Tribunal decision, it appears clear that the Tribunal did consider the requirements of s 91R of the Migration Act. The Tribunal sets out a consideration of matters in sub‑s 91R(1) at page 62 of the Court Book. There is no evidence of bias. Allegations of bias are serious, as they allege personal fault on the part of the decision maker.

15. The claim that the Tribunal was biased because it did not conduct its own independent investigations of the applicant's claim must fail, because there is no obligation on the Tribunal under s 424 or s 427 to conduct its own investigations. There is no evidence of bias, and this ground must be dismissed.

16. The applicant claimed that the Tribunal referred to irrelevant independent information and that the country information was hearsay. Independent country information is usually hearsay, and that is not a ground for review. In any event, the only independent country information referred to were report from the Department of Foreign Affairs & Trade about passports and exit procedures in China, and also about the prevalence of corruption in that country. There is nothing which would indicate that that country information was irrelevant, but, in any event, as has been submitted, the Tribunal is the one which chooses the independent country information. If the applicant had wished it the Tribunal to consider specific information, then he should have provided it.

17. The applicant claims that the Tribunal's s 424A letter did not conform with the requirements of s 424A of the Migration Act on the rather tenuous ground that he claims that the Tribunal did not consider his reply. The Tribunal did consider the applicant's reply and said:

    The applicant's explanation in his s 424A response regarding the different evidence provided by him to the Tribunal and what was submitted in his protection visa application is unpersuasive. The Tribunal does not accept that nervousness was the reason he gave different details about the alleged arrest by the Chinese authorities. It is the Tribunal's view that the applicant forgot the specific details regarding the alleged arrest[7].

    [7] See Court Book at page 67

18. The Tribunal clearly did consider the applicant's explanation. The letter, to my mind, complies with the provisions of s 424A(1) in that, on its face, it sets out clear particulars of the information that the Tribunal considered would be the reason or a part of the reason for affirming the decision that is under review and pointed out to the applicant why it was relevant and what the consequences would be if the Tribunal relied on that information. The Tribunal invited the applicant to comment on the information or respond to it. The applicant did send a letter in reply responding to the information. There is no evidence that the Tribunal's letter to the applicant did not comply with the provisions of s 424A of the Migration Act.

19. The decision was based on the Tribunal's assessment of the credibility of the applicant's evidence. The Tribunal made it clear that the applicant knew virtually nothing about Falun Gong, and his answers to the Tribunal were different from the matters provided in his protection visa application. The applicant is not represented, and I have read through the material myself in order to ascertain whether any other arguable case of jurisdictional error may appear. I cannot see any. The Tribunal complied with the requirements of s 425 of the Migration Act by inviting the applicant to a hearing. The applicant attended the hearing and gave evidence. It is clear that the Tribunal considered his evidence. However, the applicant's evidence did not persuade the Tribunal that his account should be believed. Credibility findings are matters for the Tribunal. I am satisfied that no jurisdictional error has been made out, and I am satisfied that the decision is a privative clause decision, as defined by sub‑s 474(2) of the Migration Act. Consequently, the Tribunal decision is final and conclusive and it is not subject to remedies in the nature of orders certiorari or writs of mandamus or prohibition. It follows that the application must be dismissed.

20. There is an application for costs on behalf of the first respondent, the Minister. The applicant has been unsuccessful in his claim, and it is appropriate that an order for costs should be made in favour of the respondent Minister. The Minister estimates those costs at $3200, which is within the scale envisaged by the rules of the Federal Magistrates Court. I propose to make that order.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A.Coutman

Date:  11 December 2007