SZKMN v Minister for Immigration

Case •

[2007] FMCA 1150

•

10 July 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKMN v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1150
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 People's Republic of China claiming fear of persecution on the ground of religious belief – follower of church called Hu Han Pai – credibility – no reviewable error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 427, 474
SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205
VAF v Minister for Immigration &Multicultural & Indigenous Affairs (2004) 206 ALR 471
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
Applicant: SZKMN
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 1167 of 2007
Judgment of: Scarlett FM
Hearing date: 10 July 2007
Date of last submission: 10 July 2007
Delivered at: Sydney
Delivered on: 10 July 2007

REPRESENTATION

Applicant: In Person
Counsel for the Respondent: Ms Clegg
Solicitors for the Respondent: Clayton Utz

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent's costs fixed in the sum of $4,400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1167 of 2007

SZKMN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 8th February 2007 after a hearing that took place on 18th January in that year. I note that the Tribunal decision record wrongly describes the hearing as having taken place on 18th January 2006.  (See Court Book page 71).  I am satisfied however that the hearing took place on 18th January 2007 and the decision was handed down on 20th February 2007. 

  2. In that decision the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.  The Applicant filed an application for judicial review on 10th April 2007.  In that application the Applicant seeks orders in the nature of a writ of certiorari quashing the Tribunal decision and a writ of mandamus returning the application to the Tribunal for determination according to law. 

Background

  1. The background to this matter is that the Applicant is a citizen of the People's Republic of China who arrived in Australia on 20th May 2006.  He applied for a Protection (Class XA) visa on 3rd July 2006.  The application was refused on 29th September 2006 and the Applicant then applied to the Refugee Review Tribunal for a review of that decision on 7th November 2006. 

  2. The Applicant was represented by a migration agent who forwarded a covering letter to the Tribunal in which relevantly the agent said:

    The applicant does not agree with the Department's decision.  He claims that the Department has made incorrect finding regarding his identity, as well as his refugee claims. 

    The applicant claims that he is practising as a Hu Han Pai member in Blacktown regularly. I have asked him to submit evidence to support such claim as soon as possible.

    The applicant would like to present oral evidence in the Tribunal's hearing.[1]

    [1] See Court Book at page 40.

  3. The Tribunal wrote to the Applicant care of his migration agent on 17th November 2006. That letter was a hearing invitation in accordance with s.425 of the Migration Act. The letter invited the Applicant to attend the hearing at 12:30pm on 18th January 2007. The Applicant's migration agent replied and completed the Response to Hearing Invitation indicating the Applicant wished to attend the hearing and give evidence. 

  4. On 17th January the Applicant's migration agent wrote to the Tribunal enclosing documentary evidence by way of letters from members of the local church in Sydney concerning the Applicant's church attendance. The Applicant produced three photos of himself taken in company with other people at a church function. 

  5. The Applicant attended on 18th January and gave evidence and answered questions by the Tribunal. The Tribunal wrote to the Applicant after the hearing on 18th January in a letter headed: "Invitation to Comment on Information".  The information referred to included this paragraph:

    In the statement attached to your application you said that you had been questioned by the police in September 2004 for two hours.  At the hearing on 18 January 2007 you confirmed that all the statement was correct except that you had had eight years education not six years education.  However, at the hearing you also said that in September 2004 the police had arrested you and detained you for three or four days and that you had been beaten by the inmates.[2]

    The letter invited the Applicant to comment on that and other information by 1st February 2007. 

    [2] See Court Book at page 56.

  6. The Applicant's migration agent sent a fax to the Tribunal on


    31 January 2007 replying to that letter.  That letter included the following paragraph:

    He does not want to disclose information about his being arrested and detained because he worries such information will make people think he is a person of bad character.  He is ashamed of his previous detention.  During the hearing he believed that all the information he disclosed to the Tribunal would be given high privacy, and he also believed such information was important in establishing his well-founded fear so he told the Tribunal about the arrest and the detention.[3]

    [3] See Court Book at page 59

  7. The Tribunal handed down its decision on 20th February 2007 and a copy of the Tribunal decision record can be found in the Court book at pages 66 through to 79.  A supplementary Court book was produced in which a copy of the decision record was contained to correct some confusion which may have occurred due to part of the decision record having been omitted.  I am satisfied that nothing turns on that point. 

  8. The Tribunal noted that the Applicant claimed fear of persecution in China for the Convention related reason of religion. The Tribunal asked the Applicant about his religious observance and about his being detained in September 2004. The Tribunal asked the Applicant about the letter that he had produced prior to the hearing from the local church in Sydney. The Tribunal noted at page 75 of the Court book that it had explained the operation of sub-s.91R(3) of the Migration Act. The Applicant told the Tribunal that he understood and that he had not joined the local church for the purpose of strengthening his claim to be a refugee.

The Tribunal’s findings and reasons

  1. The Tribunal accepted that the Applicant was a national of China and accepted the Applicant's claim as to his real identity. The Applicant had travelled under another identity to get to Australia. However, the Tribunal formed an adverse opinion about the Applicant's credibility.  The Tribunal said at page 77 of the Court book:

    The applicant did not impress the Tribunal as being a credible witness.  Although he was able to recount the events given in the written statement, he was frequently unresponsive to the Tribunal's questions. For example when asked how many members of the local village were Hu Han Pai members, the question had to be repeated several times before the applicant gave an answer that was responsive to the question. The applicant also changed his evidence at times during the hearing. 

  2. The Tribunal went on to make this statement:

    At the hearing the applicant claimed that he had been detained for three or four days and that he had been badly beaten by the inmates during that detention.  This claim had not been included in the written statement accompanying the application. The Tribunal regards it as a significant omission. The applicant claims that he fears persecution in China for the Convention-related reason of religion.  If he had been detained for three or four days this would be central to his claim for protection.  The Tribunal does not accept the reasons given for the omission.

  3. The Tribunal went on to give examples of other matters where it had formed a negative view of the Applicant's credibility. The Tribunal went on to refer to the three photographs submitted by the Tribunal and the letter from the local church in Sydney. The Tribunal was not satisfied that for the purposes of sub-s.91R(3) of the Act that his conduct in meeting regularly with the church in Australia since June 2006 has been engaged in otherwise than for the purpose of strengthening his claim to be a refugee. 

  4. The Tribunal was not satisfied that the Applicant had been a follower of Hu Han Pai in China in the past or that he would be in the future or that he would be perceived by the authorities as being involved with Hu Han Pai. The Tribunal was not satisfied that the Applicant had a subjective fear of Convention related persecution in China or that he faced a real chance of such persecution. 

  5. The Tribunal was not satisfied that the Applicant had a well-founded fear of being persecuted in the relevant sense and affirmed the decision not to grant the Applicant a Protection (Class XA) visa. 

The Application for Judicial Review

  1. In his application for review, the Applicant claims that the RRT decision was affected by jurisdictional error.  He says:

    The RRT failed to afford the applicant procedural fairness as it failed to carry out its duty under s.424A of the Act to invite the applicant to comment on relevant information. 

  2. The Applicant provided the following particulars of that ground:

    The applicant submitted to the Tribunal evidence showing his religious practice in Australia. The Tribunal gave no consideration to such evidence as it was satisfied that for the purposes of subsection 91R(3) of the Act that  his conduct in meeting regularly with Church in Australia since June 2006 has been engaged in otherwise than for the purpose of strengthening his claim to be a refugee. 

    The Tribunal failed to invite the applicant to comment on this information and failed to give the applicant an opportunity to establish his purpose of church activities.

  3. It is of course patently obvious that the breach of s.424A that the Applicant claims is not a breach of s.424A at all. The information that the Applicant claims he was not given the opportunity to comment upon was information that the Applicant provided to the Tribunal for the purpose of the application. It is specifically excluded from the operation of sub-s.424A(1) of the Act because it comes under the exception in sub-s.424A(3)(b) of the Act.

  4. In any event, the Applicant's claim that the Tribunal gave no consideration to that evidence is not borne out by the Tribunal decision.  A reading of the Tribunal's findings and reasons at pages 77 and 78 of the Court book or pages 12 and 13 of the supplementary Court book will show that the Tribunal did consider this evidence.  It did not accept the evidence. 

  5. The ground that the Applicant claimed that his purpose of engaging in church conduct was not to strengthen his refugee claims contained in the application is no more than an invitation to the Court to conduct a merits review.  A Court conducting judicial review of a decision of the Refugee Review Tribunal does not have the power to consider again the factual evidence and make its own decision.  As Gyles J said in SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 at [3]:

    Insofar as the Federal Magistrates Court is concerned, it has no role to second-guess the Tribunal on matters of fact or judgment.  The Federal Magistrates Court can only correct the Tribunal if jurisdictional error is revealed.

  6. The Applicant in oral submissions to the Court complained that the Tribunal did not carry out any research into his claims. It is well established that there is no general obligation on the Refugee Review Tribunal under either s.424 or s.427 of the Migration Act to conduct its own investigation or inquiries.

  7. The Applicant told the Court that he had not written in his statement about having been detained and beaten and confirmed he had just told that to the member at the hearing.  He told the Court that at first he did not mention it because it would cause him to lose face.  Later he told the Court that at that time he did not know whether the information about having been detained and beaten was very important.  Later still he told the Court that he had not mentioned the information earlier because he was unaware of legal procedures in Australia. 

  8. The Applicant also told the Court that the Tribunal did not provide sufficient evidence to prove that he did not have a reasonable fear of persecution if he were to return to China. It is not of course the Tribunal's responsibility to provide evidence to disprove an applicant's claim.  It is well established that an applicant for a visa must provide sufficient evidence to the Tribunal to satisfy the Tribunal that he or she meets the necessary criteria for that particular visa. 

  9. I have had the benefit of reading written submissions prepared by


    Ms Clegg, counsel for the First Respondent. She refers to the ground identified in the Applicant's application and characterises it as an allegation that the Tribunal's assessment or thought processes in connection with his claimed Hu Han Pai conduct in Australia should have been the subject of a s.424A letter. She noted that the Applicant also claimed that that evidence was not considered. Ms Clegg submitted that the Tribunal's decision record reveals that this issue was put to the Applicant at the hearing and that the Tribunal did in fact consider it in its findings and reasons. I am satisfied that that submission is correct.

  10. Ms Clegg also submitted that it was well established that s.424A of the Migration Act applies to information and not the reasoning process of the Tribunal. That proposition does not require any elaboration and I am referred to the decisions of VAF v Minister for Immigration &Multicultural & Indigenous Affairs (2004) 206 ALR 471 at 477 per Finn and Stone JJ and more recently in the High Court of Australia in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26. There was no information in the protection visa application not given by the Applicant which was relied upon by the Tribunal and invoked s.424A obligations.

  11. Ms Clegg also submitted that whilst the inconsistency or absence of information or delay in the Applicant's making the claim that he had been detained on a second occasion was substantive or important to the decision in this case; it was not information which in its terms was part of the reason for decision.  It was not the absence of information in the protection visa application but what the Tribunal did with that absence of information or inconsistency.  It was the Tribunal's reasoning process or doubts about the absence of evidence.  And I am referred to SZBYR at [18].

  12. Ms Clegg also submitted, and in my view correctly, that to the extent that SZBYR stands for the proposition that the Applicant should receive a fair hearing, at [19] of the decision, this matter was raised with the Applicant at the hearing in any event. 

  13. The fact is that the reason why the Tribunal affirmed the delegate's decision was because the Tribunal had formed an adverse opinion of the Applicant's credibility as a witness. That is a decision for the Tribunal provided that there is evidence upon which such a finding is reasonably open.  The Tribunal has quite clearly set out the reasons why the Tribunal Member formed this adverse opinion of the Applicant's evidence.  In my view there is ample evidence to support the Tribunal's view that the Applicant was not a witness whose credibility could be relied upon. 

  14. The Tribunal's description of the Applicant being frequently unresponsive to the Tribunal's questions and changing his evidence at times during the hearing became quite clear during the Applicant's oral submissions to the Court in reply to questions from the bench.  It is of course for the Tribunal to make a decision as to the Applicant's credibility and not the Court.  There was ample evidence, in my view, upon which the Tribunal could make that decision.

  15. The Applicant is not legally represented. I have read through the Tribunal decision in both the Court book and the supplementary Court book and I have read through the supporting material. In my view there is no arguable case of any jurisdictional error.  I am satisfied that the Tribunal decision is a privative clause decision as defined by


    sub-s.474(2) of the Migration Act and consequently, under sub-s.474(1) of the Act, the decision is final and conclusive and is not subject to orders in the nature of certiorari and mandamus which the Applicant seeks.

  16. It follows that the application must be dismissed and I will hear on the question of the First Respondent's costs.

  17. There is an application for costs on behalf of the First Respondent Minister in the sum of $4,400.00. The Applicant has been wholly unsuccessful in his claim and my view is that the Court should not depart from the rule that costs should follow the event. The amount sought, inclusive of counsel's fees, is $4,400.00 which to my mind is an appropriately modest sum and well within the scale envisaged by the Federal Magistrates Court Rules.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  18 July 2007


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