SZKHK v Minister for Immigration
[2007] FMCA 1207
•6 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKHK v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1207 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – applicant is a citizen of the People's Republic of China claiming fear of persecution – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.424A – credibility – whether Tribunal failed to provide a suitable interpreter – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.474 |
| SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195 |
| Applicant: | SZKHK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 740 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 6 July 2007 |
| Date of last submission: | 6 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 6 July 2007 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms McWilliam |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 740 of 2007
| SZKHK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for the review of a decision by the Refugee Review Tribunal. The Tribunal signed its decision on 22nd January and handed the decision down on 13th February 2007. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
The Applicant has filed an application and an affidavit on 5th March 2007 seeking judicial review of the tribunal decision.
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 11th May 2006. He applied for a Protection (Class XA) visa on 5th June 2006, but his application was refused on 2nd August in that year. On 29th August 2006 the Applicant applied to the Refugee Review Tribunal for a review of that decision.
The Applicant did not forward any other information to the Tribunal with his application. The Tribunal wrote to the Applicant on 11th September 2006 in a letter headed, ‘Invitation to Comment on Information’. The 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 to pieces of information. One topic related to the Applicant's occupation and marital status, and the other related to a visa which was issued to him on 20th July 2005. That visa would have enabled him to remain in any of the Schengen states for up to three months. The visa would have enabled him to seek protection from any of those states. The letter said that the states included Germany, Austria, Belgium, Denmark, France, Greece, Spain, Sweden, Iceland, Luxembourg, Italy, the Netherlands, Norway and Portugal.
The letter went on to inform the Applicant that the majority of those countries were signatories to the Refugees Convention, but he made no attention to seek refuge when he had the opportunity, but that prior to arriving in Australia he had travelled to Germany, Austria and Hungary. The letter invited the Applicant's comments, and the Applicant replied in writing on 26th September. In that reply he referred to the fact that he spent his savings and that a travel company promised to get him a visa to visit Australia, and he did not know how they got the Australian visa. During the period whilst he was away, he was not aware how serious his status was and never imagined he would be persecuted after by the Chinese government.
The Tribunal wrote to the Applicant on 29th September 2006 inviting him to attend a hearing on 30th October. The Applicant replied, indicating he wished to attend and would require a Mandarin interpreter. The Tribunal postponed the hearing to 8th December. On 23rd November 2006 the Tribunal again wrote to the Applicant in a letter headed ‘Invitation to Comment on Information’, putting to him questions in similar terms, although not identical to, the matters in the earlier letter. The Applicant appears not to have replied to that letter.
The Applicant attended the hearing and produced a copy of his passport. The decision was handed down on 13th February 2007. A copy of the Tribunal decision record is found in the Court Book at pages 99 through to 112 of the Court Book.
In the decision record, the Tribunal covers in some detail the Applicant's claims and, in particular, describes the evidence before the Tribunal, both documentary and oral. That is covered on pages 104 to 108 inclusive of the Court Book, and includes not only a summary of the Applicant's oral evidence and many of the questions asked by the Tribunal but also what appears to be a verbatim transcription of parts of the Tribunal evidence in question and answer form.
The Tribunal’s findings and reasons
The Tribunal's findings and reasons, which appear on pages 108 to 112 of the Court Book acknowledge that the Tribunal was satisfied that the Applicant was a citizen of China. The Tribunal did not, however, form a favourable view of the credibility of the Applicant's claims. The Tribunal was not convinced that the Applicant was who he claimed to be. At page 108, the Tribunal said:
Clearly the Applicant cannot be both a Vice Director of the Beijing Intelligence Exchange and married as claimed when he applied for a tourist visa to visit Australia, and an unmarried eel farmer as claimed in his protection visa application. The Tribunal gave the Applicant every opportunity at his hearing and later through the 424A process to explain his identity to the satisfaction of the Tribunal, however, his response to the Tribunal's 424A letter provided no additional information on which it could rely in making its decision.
The Tribunal concluded that the Applicant was not a reliable witness and set out its reasons for making that finding. It was because the Tribunal determined that the Applicant was not a reliable witness that it did not accept the Applicant's claims that he feared persecution on his return to China or that he was a person of interest to the authorities. The Tribunal did not accept that, upon his return to China, the Applicant would be at risk of being persecuted for his perceived political views or for wanting to seek compensation through the Chinese legal system in respect of land that he had claimed had been confiscated from him at that time or in the foreseeable future.
The Tribunal was not satisfied that the Applicant was a person whom Australia has protection obligations under the Refugees Convention as amend by the Refugees Protocol, and affirmed the decision not to grant the Applicant a protection visa.
The application for judicial review
The Applicant filed an affidavit to which he annexed a copy of the tribunal decision. In that affidavit he stated first that he disagreed with the Tribunal decision and that the decision interfered with his right to remain in Australia, and he believed the decision contained an error of law. In his application he sought:
a)An order to set aside the decision of the RRT.
b)An order to the RRT to reconsider the decision and be heard and determine differently and according to the law.
I explained to the Applicant that I believed that that second order was outside the jurisdiction of the Court, but I accept it as an application in the order of mandamus.
The Applicant set out three grounds of relief claiming the following:
(1) The Tribunal committed jurisdictional error of law in that it failed to comply with s.424A of the Migration Act 1958 and:
(a) invite the applicant to comment on the information;
(b) ensure that the applicant understood why the information was relevant to the review.
(2) The RRT failed to provide a representable translator on the hearing day: the translator obstruct my speaking, and did not give me a chance to talk.
(3) There is no evidence proving that I am not the person I claimed to be.
The Applicant did not file any written outline of submissions, but made oral submissions to the Court. I asked the Applicant to expand on the grounds contained in his application. When I asked him about the first ground ‑ namely, the alleged breach of s.424A of the Migration Act ,the Applicant asked the Court: ‘What do you mean by s.424A?’ It became clear that the Applicant's idea of the contents of his application, which he said had been prepared by a friend, was, at best, hazy.
The Applicant told the Court that the Tribunal Member immediately as he stepped into the Court room said: ‘You are not entitled to protection’. He said that the Tribunal Member read the material and then told him: ‘You are not entitled to protection’. This is a claim that has not been made before, and if it is an allegation of bias, it is one made without any evidence whatsoever.
The Applicant complained that when he did address the Court he would start two or three sentences and then the Tribunal Member would switch to another subject. He complained that the Tribunal Member cut him off at times during the hearing, as did the interpreter. There is no evidence that the Tribunal Member acted in this way. The appropriate way to provide evidence in that respect would be by way of the production of a transcript of the Tribunal hearing, but such was not available.
The Tribunal's decision contains portions of what appears to be the transcript in question and answer form, and the portions reproduced, which, admittedly, are not the totality of the transcript, do not indicate that the Tribunal Member prevented the Applicant from answering the questions appropriately.
The Applicant complained about the competence of the interpreter at the hearing. This was, indeed, ground two. He said that the interpreter obstructed him speaking and did not give him a chance to talk. In his oral submissions, the Applicant said that the interpreter told him he should only speak two or three sentences at a time and that the interpreter would ask him to stop talking occasionally, which appears to suggest that all the interpreter was trying to do was obtain a chance to translate into English what the Applicant was saying. There is no evidence of any irregularity or any failure on behalf of the interpreter at the hearing.
The Applicant took exception to the Tribunal's finding that the Applicant was not who he claims to be. He was asked about the conflicting claims in his original application for a visa, in which it was stated that he was married and a vice‑director of the Beijing Intelligence Exchange and his application for a protection visa, in which he claimed to be an unmarried eel farmer. The Applicant reiterated that he'd always been an eel farmer and that he did not know about the claim that he was a married person and a vice‑director of the Beijing Intelligence Exchange.
The Applicant appeared, as Ms McWilliam, counsel for the Respondent Minister put to the Court, really to be saying in his third ground that he just did not agree with the Tribunal decision ‑ in other words, he was making a complaint about the outcome of the Tribunal proceedings. I am inclined to agree.
When I asked the Applicant about his claim of a breach of s.424A of the Migration Act and the applicant was unable to reply, I did point out to him that the Tribunal had written two letters to him under the provisions of s.424A of the Migration Act. The first was written on 11th September 2006, and a copy appears on pages 58 and 59. The second was written on 23rd November 2006, and a copy appears on pages 69 and 70.
The Applicant replied to the first s.424A letter by means of a letter received at the tribunal on 26th September 2006, but appears not to have replied to the second. In my view, those letters did comply with the requirements of s.424A of the Migration Act.
Ms McWilliam of counsel did bring to my attention the fact that there were two conflicting photographs of the Applicant, copies of which appear at pages 50 and 51 of the Court Book. The first one appears to be in his initial visa application, and the second was in his application for a protection visa. They are clearly of two different people and, in fact, the second photograph that appears on page 51 appears to be a photograph of the Applicant, whilst that on page 50 appears not to be.
The Tribunal did refer at page 109 of the Court Book to the fact that the application which was originally made to visit Australia contained serious inaccuracies in regard to the Applicant's background and occupation, even to the point of using a photograph and the identity of a different person. It does not appear clear that the two photographs were specifically put to the Applicant in the s.424A letters. Nevertheless, it is submitted by Ms McWilliam of counsel, and, I believe, correctly, that that point does not fall within the reach of s.424A of the Migration Act.
The reference to the photographs, described as "passing reference", was not one of the reasons for affirming the decision under review. I am also referred to the decision of the High Court of Australia in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18] and [19] and, further, I was referred to the decision in NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195 at [60].
The issue of the photographs, to my mind, is a matter of no consequence and does not amount to a breach of s.424A of the Migration Act. The fact is that the Tribunal was not satisfied as to the credibility of the Applicant's evidence. Questions of credibility are factual issues and are matters for the tribunal. Provided that there is evidence upon which such a decision can be made, a decision on credibility is not subject to challenge, or successful challenge at least, in an application for judicial review. In my view, the Tribunal had ample evidence upon which it would base its adverse credibility finding, and that evidence appears at page 109 of the Court Book and is summarised accurately, in my view, in the written outline of submissions prepared on behalf of the Minister.
The matters upon which the Tribunal based the adverse credibility finding were these:
i)The serious inaccuracies in regard to Applicant's background and occupation;
ii)The lack of credibility of the Applicant's explanation for the inaccuracies;
iii)The Tribunal's view that the Applicant did not appear to care whether or not the information in the visa application was accurate; and
iv)The Applicant's poor knowledge of the Mentougou district.
In my view there was a considerable amount of evidence which would entitle the Tribunal to make the findings that it did. In my view none of the Applicant's claims of jurisdictional error have been made out. I am mindful that the Applicant is not legally represented in these proceedings. I have read through the Tribunal decision and the supporting material in an independent endeavour to ascertain whether any arguable case of jurisdictional error is made out. I am unable to discern any. In my view there is no jurisdictional error, and, accordingly, the decision is a privative clause decision as defined by sub‑s.474(2) of the Migration Act.
A privative clause decision is not subject to orders in nature of certiorari or mandamuses, which are the orders the applicant seeks. It follows, therefore, that the application must be dismissed.
There is an application for costs on behalf of the Respondent Minister. The Applicant has been wholly unsuccessful in his claim, and this is a case where costs follow the event. The amount sought is $4,500.00 which is, in my view, a modest amount, and well within the scale envisaged by the Federal Magistrates Court Rules. I propose to order that the Applicant is to pay the First Respondent's cost fixed in the sum of $4,500.00.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 25 July 2007
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