SZKJV v Minister for Immigration
[2008] FMCA 26
•31 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKJV v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 26 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal has no duty to enquire – it is a matter for the Tribunal which evidence it obtains – the scope of the Tribunal’s enquiry will be defined by what is required to reach a rational and reasonable decision – civil law concepts concerning the role and functions of inquisitorial tribunals do not apply to the Tribunal – information used as the basis of comment invited under s.424A was to be provided from a place in Australia because the s.424A notice did not contemplate any comment to require information to be obtained from overseas and the applicant did not advise the Tribunal that any information had to be sourced from outside Australia. |
| Migration Act 1958 (Cth), ss.91R, 420, 424A, 424B, 425, 427 Migration Regulations 1994 (Cth), reg.4.35 |
| Applicant M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16 Hooper v Secretary of State for Work and Pensions [2007] EWCA Civ 495 Mongan v Department of Social Development [2005] NICA 16 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 81 ALJR 515 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 Re: Ruddock; Ex parte Applicant S154/2002 (2007) 201 ALR 437 Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118 Minister for Immigration & Citizenship v Le [2007] FCA 1318 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Jones v Dunkel (1959) 101 CLR 298 |
| Applicant: | SZKJV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 949 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 14 September 2007 |
| Date of Last Submission: | 14 September 2007 |
| Delivered at: | Sydney |
Delivered on: | 31 January 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr S. Prince |
| Counsel for the Respondents: | Mr P. Silver |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 949 of 2007
| SZKJV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, she claims, she practised Christianity. She alleges that while in China she was involved in religious activities and that this subsequently led to her being detained, beaten, sexually assaulted, humiliated and scalded with boiling water. The applicant left China for Australia in December 2006.
The applicant claims to fear persecution in China because of her religious beliefs.
After her arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on
17 January 2007. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-14 of the Tribunal’s decision (Court Book (“CB”) pages 199-209). Relevantly, they are in summary:
a)the applicant graduated from a fashion design course in 2003. She obtained a good placement with a big fashion design company. She became friends with a colleague, who was Christian. This colleague introduced the applicant to her group of friends who read the Bible, prayed and helped people in need. The applicant began regularly to attend Sunday meetings which would take place in different houses and involved studying, singing, cooking, washing and taking care of the needy;
b)the applicant was baptised in 2005 through a business associate. The associate lived in Singapore and became the applicant’s godmother;
c)in July 2006, some members of the applicant’s church were arrested. They revealed to the authorities the names of other members of the group. The applicant was taken into police custody in Guangzhou. She was detained for two days. Whilst there, she was beaten, scalded with boiling water and sexually assaulted and humiliated. The authorities tried to make the applicant admit that she belonged to an anti-government cult and tried to make her sign a paper. The applicant refused to do so. She was released because there was too little evidence to charge her;
d)the applicant did not report the incident to the authorities because they were the ones who harmed her. She also feared that they would not believe her. When the applicant told her godmother (in Singapore), her godmother invited the applicant to Singapore in August 2006, where she stayed for two months. She lived with her godmother’s family and went to church with them every Sunday; and
e)the applicant returned to China in mid-October 2006 because her family was there. She had a good job and she hoped that things would improve with the passage of time. On her return, the applicant continued to meet her church friends. Soon afterwards, the police called on her at home and gave her a letter advising her that if she continued her contacts with the church she would be in trouble. The applicant took the threats seriously and started looking for ways to leave China.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal did not find the applicant to be a credible witness. She spoke at length about some aspects of her claims – such as her treatment at the hands of the Guangzhou PSB – yet was curiously vague on other issues;
b)the applicant’s demonstrated knowledge of Christianity at the hearing and her description of her personal practise in China were patchy. Her references to her personal practise were brief and rehearsed and she stumbled when asked to give more detail on matters such as significant events in her church’s religious calendar. The applicant appeared to seize on opportunities to demonstrate recently acquired knowledge but did not place this in context, as might reasonably be expected of a genuine Christian;
c)in the chronology enclosed with the s.424A(1) submission of the applicant’s solicitors the applicant introduced a new element of her religious activities in China, namely proselytising by doorknocking, which the Tribunal dismissed as a recent embellishment which cast doubt on the applicant’s credibility more generally;
d)the Tribunal found in the applicant’s evidence on her Christian faith, strong evidence that she was not a genuine adherent since 2003 but that she had recently been drilled in it for the purposes of her refugee application;
e)the Tribunal found it significant that the applicant initially identified herself as a Buddhist when arrested by departmental officers;
f)the Tribunal found that the applicant’s conduct and experiences in China, and her travel history up to the end of 2006, were inconsistent with that of a person who feared persecution in that country, noting:
i)the applicant’s visit to Singapore in August to October 2006 and her activities there were not consistent with the priorities and concerns of a person who had experienced persecutory harm;
ii)the applicant’s return to China in October 2006 demonstrated that she did not, at that time, fear persecution there;
iii)the fact that the applicant obtained a travel document in Singapore in late 2006 and a replacement passport in China in November 2006 showed that she did not fear persecution or other harm from the authorities and, further, that they had no adverse interest in her;
iv)if the authorities had truly been interested in pursuing the applicant for her failure to comply with the 23 October 2006 summons for her to attend an interview concerning her involvement in a prohibited religious group, they would not have been prevented from doing so simply because the applicant had moved house to live with a friend and had taken long-term leave from her work;
v)the applicant gave inconsistent evidence as to whether, on her return to China, she was merely warned by the police or issued with a summons; and
vi)the Tribunal placed no weight on the purported summons issued in Guangzhou on 23 October 2006 considering its provenance to be highly suspect;
g)the Tribunal concluded on the basis of its expressed concerns and the applicant’s limited familiarity with Christianity that her claimed association with Christianity and the claimed resultant harm were fabricated; and
h)although the Tribunal accepted that the applicant had met with Christian visitors at Villawood Immigration Detention Centre (“Villawood”) and participated in study groups, it was not satisfied that she had engaged in such conduct otherwise than for the purpose of strengthening her claim to be a refugee. The Tribunal noted that s.91R(3) of the Act required it to disregard such conduct when determining whether the applicant has a well founded fear of persecution.
Proceedings in this Court
The applicant filed an amended application at the hearing. The grounds of the amended application were pleaded in the following terms:
a. Ground 1: It failed to discharge its functions under the Act, particularly by reference to ss.427, 420, 425 and 414(1) by failing to use its powers in the circumstances to summon a person known as YYL to appear before the Tribunal and give evidence, or to require the Secretary to make an investigation with respect to review concerning the claims and evidence of Ms YYL in support of her own protection visa application (“the Failure to Inquire Re Ms YYL issue”)
b. Ground 2: The applicant repeats the matters relied on in Ground 1 and says that that failure also involved an error of jurisdiction because it involved an exercise of a decision making power in a manner so unreasonable that no reasonable person would have so exercised it;
c. Ground 3: The Tribunal failed to comply with s.424A of the Act by reason of its failure to comply with s.424B(2) and Regulation 4.35(4) by not issuing a notice specifying 28 days as the time in which to reply (“the Notice Issue”);
d. Ground 4: The Tribunal failed to comply with s.424A(1)(b) of the Act by reason of its failure to explain the why the Baptismal Certificate and the information in the protection visa would part [sic] of the reason for affirming the decision under review (“the Baptismal Certificate issue”).
Dealing with each of these grounds in turn:
Ms YYL: failure to exercise jurisdiction.
The applicant submitted that Ms YYL’s involvement in the events which allegedly brought the applicant to Australia was sufficiently significant that in the exercise of its jurisdiction the Tribunal ought to have ensured that she attended the applicant’s hearing. Section 427 of the Act provides that the Tribunal may summon a person to appear before it. It was submitted by the applicant that the Tribunal’s powers pursuant to s.427 had to be exercised subject to the overriding obligation found in s.420 of the Act that it act according to substantial justice and the merits of the case. Although conceding that the Tribunal has no obligation to exercise the powers given to it by s.427 the applicant submitted that the discretion which this section confers is one which, in certain circumstances, the Tribunal is nevertheless effectively required to exercise. In this regard, the applicant referred to what was said in Applicant M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16 by Lee J at [76] and [77]:
If the material before the Tribunal and the circumstances are such that the need for further inquiry is obvious, and no impediment to the conduct of such an inquiry is apparent, the failure of the Tribunal to exercise the power and proceeding instead to make a decision adverse to an applicant may point to a conclusion that the Tribunal has denied the applicant the conduct of a fair proceeding. In particular that issue will arise where the Tribunal is prepared to draw adverse inferences from material before it on grounds that are slight and in the absence of the assistance to the hearing process that would be provided to the Tribunal by reasonable use of the powers provided under s.427(1)(d).
The obligation upon the Tribunal to conduct a fair hearing is confirmed by the terms of s.420 of the Act which, whilst instructing the Tribunal to provide a mechanism of review that is economical informal and quick and not bound by technicalities legal forms or rules of evidence, requires the Tribunal to ensure that the process of review is fair and just and states that the Tribunal must act according to substantial justice and the merits of the case.
It is also worth considering that Tamberlin J said in the same case at [118] that the Tribunal’s reasons for decision reflected such a closed state of mind in relation to the claims of the appellant that there was, on the face of the reasons, ostensible bias with the consequence that the Tribunal failed to exercise its jurisdiction properly and that this gave rise to jurisdictional error.
Applicant M164/2002’s case is distinguishable from this case. There, the willingness of the Tribunal to draw inferences on grounds which Lee J found to be slight and which Tamberlin J concluded reflected a closed state of mind led to the conclusion that the Tribunal had failed properly to consider the applicant’s claims and had denied the applicant the conduct of a fair proceeding. In this case the Tribunal considered at some length the information which the applicant had supplied:
a)initially to the department;
b)subsequently to the Tribunal;
c)during the hearing; and
d)after the hearing, pursuant to the s.424A(1) letter which the Tribunal sent to her.
Its detailed consideration of the issues raised by the applicant is not suggestive of a closed mind. Moreover, although the Tribunal might have been assisted by obtaining evidence from Ms YYL it could not be said that the need for such further enquiry was obvious. Although Ms YYL was detained at Villawood at the time of the Tribunal hearing, and therefore it would seem that there was no impediment to her attending to give evidence before the Tribunal, unless there were some reason more compelling than that advanced by the applicant in these proceedings, which was she could shed some light on relevant issues, the fact that the Tribunal did not exercise the power available to it under s.427 does not amount to jurisdictional error by reason of a failure to conduct a fair proceeding.
For the same reasons as set out above at [11] and [12], the fact that the Tribunal did not require the Secretary of the Minister’s department to make the investigation into Ms YYL’s claims does not amount to jurisdictional error.
Related to the applicant’s submission, that in order for the Tribunal to afford a fair hearing as required by the Act it was obligated to require Ms YYL to attend the Tribunal hearing to give evidence, was a submission that in the proper exercise of its powers as an inquisitorial body, the Tribunal was required to undertake an investigation. The applicant’s written submissions said this (at para.47):
The difference of the inquisitorial system to the adversarial system is that in an inquisitorial system the court or a part of the court is actively involved in determining the facts of the case whereas the role of the court in an adversarial system is solely that of an impartial referee between the parties: Inquisitorial Systems of Criminal Justice and the ICAC: A Comparison, Independent Commission Against Corruption (ICAC) Nov. 1994 pg. 1, 5, 6, 24.
The applicant also took the Court to the recent decision of the English Court of Appeal in Hooper v Secretary of State for Work and Pensions [2007] EWCA Civ 495 where their Lordships held that a social security appeals tribunal, which conducted an inquisitorial review, was required to consider the issues raised by the appeal before it whether or not those issues had been raised by an appellant. At [25] Dyson LJ, Thomas and Ward LJJ agreeing, quoted with approval a passage from the decision of the Northern Ireland Court of Appeal in Mongan v Department of Social Development [2005] NICA 16 which included the following passage:
Whether an issue is sufficiently apparent from the evidence will depend on the particular circumstances of each case. Likewise, the question of how far the tribunal must go in exploring such an issue will depend on the specific facts of the case. The more obviously relevant an issue, the greater will be the need to investigate it. An extensive inquiry into the issue will not invariably be required.
In relation to the identification of relevant issues for consideration by the Tribunal, what their Lordships said must be read subject to the High Court’s reasons for judgment in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 81 ALJR 515. In SZBEL at [35] the High Court held that the issues arising in relation to the decision under review, in respect of which s.425 of the Act requires the Tribunal to invite the applicant to appear before it to give evidence and present arguments, were to be identified by the Tribunal. The High Court said that if the Tribunal takes no step to identify to the applicant issues other than those that the delegate had considered to be dispositive, the applicant is entitled to assume that the issues the delegate did consider to be dispositive are “the issues arising in relation to the decision under review”.
However, the applicant went further than this and submitted that an inquisitorial procedure such as the Tribunal’s should operate in a fashion similar to that of courts in the civil law system and that the Tribunal not only has an obligation to define the scope of the inquiry but must also look for evidence both for and against the claim or appeal which is being pursued. However, no Australian cases were suggested by the applicant as an authority for such a proposition and, indeed, it is not supported by authority. In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Gummow and Hayne JJ said at 21 [43], Gleeson CJ agreeing at 13 [1] that:
… whilst s.427 of the Act confers power on the tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so. Rather, s.426 provides that, even if an applicant requests that the tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the tribunal is not required to obtain such evidence. Thus, the tribunal is under no duty to inquire. (footnotes omitted)
Nor does the High Court’s discussion of the inquisitorial nature of the Tribunal’s function in Re: Ruddock; Ex parte Applicant S154/2002 (2007) 201 ALR 437 lend any support to the applicant’s argument: Gummow and Heydon JJ at 450-451 [57] and [58], Gleeson CJ agreeing at 438 [1]. Their Honours held that:
… it was for the prosecutrix to advance whatever evidence or argument she wished to advance, and for the tribunal to decide whether her claim had been made out; (at 450 [57])
and
The tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which the applicant chooses not to embark on. (at 451 [58])
Additionally, in Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118 at [36] and [37], the Full Court of the Federal Court observed that although it is for the Tribunal to gather the information for a review, it is nevertheless a matter for the Tribunal what evidence it obtains.
The scope of the Tribunal’s enquiry will be defined by what is required to reach a decision within jurisdiction which, having satisfied the relevant statutory requirements of procedural fairness, is rational and reasonable.
If the Tribunal is under no obligation to make enquiries, is under no obligation to prompt an elaboration which the applicant does not want to make and the proceedings are ones where it is for the applicant to advance whatever evidence or argument he or she wishes to advance, then there is no scope for the implication of civil law concepts into the Tribunal’s processes. Indeed, had such an approach been a correct one, it would no doubt have been applied in Applicant M164/2002’s case. The fact that Lee and Tamberlin JJ expressed the Tribunal’s obligation to make enquiries in the circumscribed terms they did demonstrates, were it necessary to do so in light of the High Court’s decisions, that this argument advanced by the applicant cannot succeed.
Ms YYL: unreasonable failure to exercise discretion
If a decision whether or not to exercise the discretionary power under s.427 to summon a witness or to require the Secretary to make an investigation was so unreasonable that no reasonable Tribunal could ever have made it, then it may ground a finding of jurisdictional error: Minister for Immigration & Citizenship v Le [2007] FCA 1318 per Kenny J at [60]-[64].
Although the parties are in agreement that Ms YYL was in detention at Villawood at the same time as the applicant’s hearing was taking place at the Tribunal, the fact that the Tribunal did not arrange for her attendance to give evidence or require an investigation into her claims and evidence does not amount to an exercise of discretion which was unreasonable in the sense considered in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. The applicant did not ask the Tribunal to have Ms YYL attend the hearing nor does the Tribunal’s decision suggest that she requested a departmental investigation. Although this does not support a Jones v Dunkel inference it is relevant to the consideration of whether there was unreasonableness on the part of the Tribunal as alleged. In circumstances where the applicant had not flagged to the Tribunal that she considered Ms YYL to be an important witness in her case, notwithstanding that she had arranged for two other witnesses to attend the Tribunal hearing, the fact that the Tribunal did not do something which the applicant chose not to do or request herself cannot be characterised as unreasonable.
Moreover, a finding of Wednesbury unreasonableness in the circumstances of this case would also appear to involve a conclusion that the Tribunal was obliged to undertake specific, identifiable enquiries in order that it be in a position to make its decision. For the reasons already given that is not so. Therefore, in circumstances where the Tribunal is entitled to inform itself as it considers appropriate and where it was not put on notice by the applicant that Ms YYL was considered essential to her case, I find that the fact that the Tribunal did not summon Ms YYL to the Tribunal hearing and did not require a departmental investigation was not unreasonable in the Wednesbury sense.
Section 424A notice period too short
By letter dated 14 February 2007 the Tribunal wrote to the applicant’s solicitor pursuant to s.424A(1) of the Act. A number of matters were put to the applicant for comment and the applicant was required to submit such comments as she wished to make by 21 February 2007. Section 424B(2) of the Act provides:
(2) If the invitation is to give additional information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
Regulation 4.35 prescribes periods for the purposes of s.424B(2) and relevantly provides:
(2) If:
(a) the invitation relates to an application for review of a decision that applies to a detainee; and
(b) the information or comment to which the invitation relates is to be provided from a place in Australia;
the prescribed period for giving the information or comments starts when the person receives the invitation and ends at the end of 7 days after the day on which the invitation is received.
The applicant submits that the comment which the s.424A(1) notice invited was, in certain respects, to be provided from a place that was not in Australia. In this regard the applicant refers to those portions of the Tribunal’s letter which seek comment on the applicant’s activities whilst in Singapore in August to October 2006, her actions in obtaining Chinese travel documents whilst in China, an outpatient record issued from a Chinese hospital and her place of residence whilst in China immediately prior to leaving for Australia.
The applicant submitted that simply because the s.424A(1) notice was served on the applicant whilst she was resident in Australia, being in detention in Villawood, did not automatically bring the notice within the reach of reg.4.35(2). The applicant submitted that reg.4.35(4) was the applicable regulation. It provides:
(4) If:
(a) the invitation relates to an application for review of a decision that applies to a detainee; and
(b) the information or comment to which the invitation relates is to be provided from a place that is not in Australia;
the prescribed period for giving the information or comments starts when the person receives the invitation and ends at the end of 28 days after the day on which the invitation is received.
Contrary to the applicant’s submissions, in the circumstances of this case, the comment was to be supplied from Australia. In other cases it may be that an applicant is requested to make a comment which necessarily involves a need to obtain information from overseas, whether that be documents, physical evidence or specific clarification of information by particular identified individuals located outside Australia. However, that was not the case here.
It is not to the point that at the time of sending the s.424A(1) notice the Tribunal did not know that the applicant might or might not have sought to respond to the notice by obtaining information from overseas. This is because the notice did not, in its terms, contemplate any comment to require information to be obtained from overseas. Had the applicant responded to the Tribunal saying the comment sought required information to be sourced from overseas then it might be that reg.4.35(4) would then have applied to the notice in place of reg.4.35(2). But the applicant did not make any such indication to the Tribunal. Indeed, the response made by her solicitor, reproduced at CB 179ff, provides comments and also provides documents which clearly were already in Australia because of the promptness with which the response was made.
For these reasons, the seven day response period set out in the s.424A(1) notice was appropriate to the circumstances.
The applicant has further submitted that the Tribunal proceeded to reach its decision notwithstanding that the letter from the applicant’s solicitor responding to the s.424A(1) said:
We note that [the applicant] will be providing further information in regard to some of the material put to her shortly. (CB 181)
Enclosed with that letter was a letter from the applicant dated
16 February 2007(CB 189-191).
The applicant submits that the applicant’s letter dated 16 February 2007 is not the further information referred to in her solicitor’s letter. This is said to be so because the two documents were submitted to the Tribunal together (CB 206). However, given that the solicitor’s letter is dated 15 February 2007 an opposing inference is also available, namely that the solicitor’s letter was drafted before the applicant’s letter was drafted and that it is the applicant’s letter of 16 February 2007 to which the solicitor’s letter makes reference when it says that further information is to be supplied. Significantly, no other evidence was produced which would support the applicant’s argument. Nor is there any evidence before the Court to suggest that the applicant or her solicitor complained to the Tribunal that it had reached a decision before the applicant had had the opportunity to put before it all the comments she wished to make. Moreover, there is nothing in the evidence before the Court to suggest that anything additional was actually submitted to the Tribunal between the applicant’s solicitor’s letter and the signing of the Tribunal’s decision.
Given all these matters I find that the letter dated 16 February 2007 is the further information referred to in the letter to the Tribunal from the applicant’s solicitor dated 15 February 2007.
Consequently, no breach of s.424A is disclosed.
Breach of s 424A letter – the baptismal certificate
The baptismal certificate to which the applicant makes reference was enclosed with the letter from the applicant’s solicitors to the Tribunal in response to the s.424A(1) letter (CB 179ff). As a result, s.424A(3)(b) applies to the document with the consequence that no s.424A(1) obligation arose in relation to it.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 31 January 2008
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