SZKKZ v Minister for Immigration
[2007] FMCA 925
•5 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKKZ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 925 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minster not to grant the applicant a visa – applicant is a citizen of the People's Republic of China claiming fear of persecution for reasons of his religion – credibility – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958, ss.430, 430(1)(b), 424, 424A(1), 425, 427, 474, 501 |
| Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 |
| Applicant: | SZKKZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1075 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 5 June 2007 |
| Date of Last Submission: | 5 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 June 2007 |
REPRESENTATION
| Counsel for the Applicant: | Appeared in person |
| Counsel for the Respondents: | Mr J. Smith |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1075 of 2007
| SZKKZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The application before the Court is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”).The decision was handed down on 6th March 2007. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection (Class XA) visa. The applicant seeks judicial review of that decision.
In his amended application filed on 28th May 2007 the applicant seeks the following:
a)A declaration that the Tribunal decision was not a privative clause decision within the meaning of s.474 of the Migration Act 1958 (Cth) (“the Act”).
b)A declaration that the Tribunal decision was made in excess of the jurisdiction of the Tribunal and is consequently void and of no effect.
c)An order that the applicant’s application for a protection visa be returned to the Refugee Review Tribunal for reconsideration according to law.
The background to this matter is that the applicant is a citizen of China. He arrived in Australia on 13th August 2006. He applied for a protection (Class XA) visa on 11th September 2006. One month later, on 11th October, a delegate of the Minister refused the application for a visa. The applicant then applied to the Refugee Review Tribunal on 13th November 2006 for a review of the delegate’s decision. No further documents were lodged in support of the application at that time.
The applicant attended a hearing of the Tribunal on 24th January 2007. He was not represented at the hearing, and he gave evidence with the assistance of a Mandarin interpreter.
The applicant arrived in Australia on a Chinese passport which was not his own. He said that a friend had helped him to obtain that passport. He claimed to have been persecuted in China because he is a Christian. He claimed to have been a member of an unregistered Family Church. The applicant claims that in February 2005 officers from the PSB burst into the applicant’s home when they were reading the Bible.
The applicant said that he was sent to a detention centre in Fuqing and was detained for a week and fined RMB5,000.
The applicant claimed that he is certain that he would be arrested if he were to return to China.
A copy of the Tribunal’s decision record can be found at pages 114 through to 127 of the Court Book. In the decision record the Tribunal sets out the applicant’s claims and evidence at pages 117 through to 122. The Tribunal also considered independent country information at pages 122 to 124 of the Court Book. This information included the United States State Department’s 2005 Country Report on Human Rights Practices in China, and a research document dated
7th September 2005 from the Research Directorate of the Immigration and Refugee Board of Canada.
In its findings and reasons the Tribunal found that the applicant was a citizen of China, based on his evidence. However, the Tribunal formed the view that the applicant’s critical claims lacked credibility and could not be accepted. In particular, the Tribunal stated at Court Book pages 124 to 125:
The Tribunal does not accept the applicant’s evidence of how he met members from the Family Church in Fujian Province and became a Christian. The Tribunal also does not accept the applicant’s evidence that he became a member of the Family Church and attended family gatherings twice a week. Further, the Tribunal does not accept the applicant’s evidence that he was arrested in February 2005, detained for one week, paid a fine of RMB5,000 and was released after a week. The Tribunal does not accept the applicant’s evidence that members from the local Resident’s Committee and officers from the PSB visited his home often, threatened his family and prevented his son from attending school. The Tribunal also does not accept the applicant’s evidence that he continued to attend Family Church gatherings twice a week following his release from the detention centre. It is highly improbable that the applicant would have been able to attend Family Church gatherings twice a week between February 2005 and August 2006 undetected if the local authorities had him under their notice and attended his home on a regular basis as claimed.
The Tribunal stated that during the course of the hearing the applicant gave contradictory evidence which seriously affected his credibility. The Tribunal also referred to inconsistencies in the applicant’s evidence about why he was not able to obtain a passport in his own name.
The Tribunal found that the applicant did not have a well founded fear of persecution on the ground of religion, or any other convention ground, and found that there was no real chance that he would be subject to persecution if he were to return to China.
The applicant commenced proceedings for judicial review in this Court by filing an application and an affidavit on 27th March 2007. He has obtained legal advice under the legal advice scheme that operates in this Court for people seeking to challenge decisions of the Refugee Review Tribunal. A solicitor on the legal advice panel has prepared an amended application on his behalf. That amended application was filed on 28th May 2007.
The ground of the application is that the Tribunal failed to exercise its jurisdiction because it did not set out the reasons for its decision, s.430(1)(b), or refer to the evidence or any other material on which its findings of fact were based, s.430(1)(d).
The particulars of that ground are that the Tribunal made certain findings of fact about how it did not accept the applicant’s evidence on a variety of matters, but apart from noting that the applicant had given allegedly contradictory evidence about how much rent he paid and whether his son had gone to school, the Tribunal gave no reasons why it did not accept the applicant’s claims, nor did it set out any evidence or other material on which it based its findings.
The applicant attended Court today and told the Court that he did not think that it was fair for the Refugee Review Tribunal to make a decision in his case without undertaking a further investigation.
He said that he had indeed been persecuted in China and that his claims were genuine. He claimed that the Tribunal did not accept his evidence. He asked the Court to send his case back to the Refugee Review Tribunal for a fresh review. I explained to the applicant that in order for the Court to return the matter to the Tribunal the Court had to be satisfied that the Tribunal decision contained a jurisdictional error.
The applicant offered to provide further evidence, but I indicated that the Court was not in a position to hear fresh evidence relating to the applicant’s substantive claim for a visa. In a written outline of submissions, counsel for the Minister dealt with the grounds that had been set out in the applicant’s original application. It appears that the applicant’s amended application had only been filed very late.
On behalf of the Minister it was submitted that there was no jurisdictional error, and there was no denial of procedural fairness.
The applicant attended a hearing and, on the material before the Court, was given an opportunity to give evidence and present arguments as required by s.425 of the Act. The Tribunal rejected the applicant’s claims on the basis of the evidence given at the hearing and its analysis of the applicant’s claims in the light of that evidence. There was no information that fell within the operation of s.424A(1) of the Act, and there is no suggestion of bias on the part of the Tribunal.
In response to the applicant’s claims that the Tribunal failed to provide a letter to explain its doubts about his evidence it was submitted that there is no obligation on the Tribunal to give an applicant written notice of its doubts about the applicant’s claims. Any doubts about the applicant’s claims would be the result of the Tribunal’s analysis of the applicant’s evidence, and do not come within the meaning of “information” in s.424A(1) of the Act. Counsel for the Minister referred the Court to the decision in VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471.
In an oral submission counsel for the Minister, Mr Smith, referred to the claim in the amended application of a breach of s.430 of the Act. The thrust of his submission was first, that the Tribunal did not breach s.430, and second, even if it had done so, that breach would not have affected the Tribunal’s jurisdiction. It was submitted that a reading of the Tribunal decision showed that the Tribunal did not believe the applicant’s evidence and that the reasons for this lack of belief were:
a)the inconsistency of the applicant’s evidence at the hearing;
b)that some of the applicant’s claims were internally inconsistent and therefore implausible; and
c)that there was no evidence to support the applicant’s claim of a fear of persecution for reason of any political opinion.
Those matters were set out in the decision record which it is submitted complied with s.430 of the Act. Even though the Tribunal’s statement of reasons was relatively brief, it is submitted that the statement of reasons complied with each paragraph of s.430(1) of the Act.
In any event, referring to the decisions of the High Court of Australia in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323, which dealt with s. 430 of the Act, and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327, which in fact dealt with s. 501 of the Act, a breach of s.430 does not affect the decision of the Tribunal because the decision has already been made.
On my reading of the Tribunal decision it is clear that the Tribunal rejected the applicant’s claims because it formed an adverse view of the applicant’s credibility. Findings on credibility are factual findings and are matters for the administrative decision maker; in this case, the Tribunal. The Tribunal has given its reasons, albeit brief, for forming a negative view of the credibility of the applicant’s claims. In my view it was open to the Tribunal to make those adverse findings of credibility on the basis of the applicant’s evidence.
Dealing with the claim in the amended application of a breach of s.430 of the Act, s.430(1) provides the following:
Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based.
I am satisfied that the Tribunal decision record complies with each of the four paragraphs of s.430(1) of the Act. The decision record sets out the decision of the Tribunal not to grant the applicant a protection visa. The Tribunal sets out the reasons for its decision which relate specifically to its adverse findings about the credibility of the applicant’s claims. The Tribunal sets out its findings about how it is unable to accept the specific parts of the applicant’s claims based on the inconsistency of the applicant’s evidence and the implausibility of some of those claims, and the decision does refer to the evidence before the Tribunal upon which the Tribunal based its findings.
In my view s.430 has been complied with, and I am also of the view following the decision of the High Court in Palme’s (supra) case that a breach of s.430 would not in any event have affected the decision, and no jurisdictional error appears.
The applicant was not represented at the hearing today, although as I indicated earlier he had the benefit of legal advice from an experienced solicitor on the legal advice panel. That solicitor prepared an amended application for the applicant and I have considered the claims in that amended application. Counsel for the respondent has also considered in his submission, and replied to, the claims made in the applicant’s original application. I am satisfied that those submissions are correct and that the original application does not indicate any jurisdictional error.
Taking the matter one step further, I have considered the claims made by the applicant in his oral submission today. He told the Court that the Tribunal should have made a further investigation of his claims. There is no obligation on the Tribunal to do so. Whilst ss.424 and 427 of the Act give the Tribunal the power to conduct its own investigations, or call for further material, they impose no obligation on the Tribunal to act in that way. In my view there was nothing in the evidence before the Tribunal that would raise any suggestion that the Tribunal should conduct any independent investigation.
I am not able to discern any other arguable case for jurisdictional error that has not been raised by either of the parties. It follows that there is no jurisdictional error and the Tribunal decision is a privative clause decision as defined by s.474 of the Act. Because it is a privative clause decision it is not subject to any declaration or any order in the nature of mandamus sending the application back to the Tribunal. There is no ground for setting aside the Tribunal decision, and the application will be dismissed.
There is an application for costs on behalf of the first respondent Minister. The applicant has been wholly unsuccessful in his claim, and I am satisfied that this is an appropriate matter to make a costs order. An amount of $5,000.00 is claimed which I understand is inclusive of counsel’s fees, and I consider that to be an appropriate figure and within the range provided by the Court Rules. I propose to make the order that is sought.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 14 June 2007
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