SZKMX v Minister for Immigration
[2009] FMCA 330
•22 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKMX v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 330 |
| MIGRATION – Visa – Protection (Class XA) visa – citizen of China claiming fear of persecution for having taken part in anti-government protest activity – credibility – whether Tribunal was biased or failed to act in good faith – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.425 – whether Tribunal failed to consider relevant material – privative clause decision. |
| Migration Act 1958 (Cth), ss.424A, 425, 476 |
| SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 SZKMX v Minister for Immigration & Anor [2007] FMCA 301 SZKMX v Minister for Immigration and Citizenship [2008] FCA 856 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 261 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 NADH of 2001& Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; 231 ALR 592 SZCZN v Minister for Immigration and Citizenship [2008] FCA 173 VWST v Minister for Immigration and multicultural and Indigenous Affairs [2004] FCAFC 286 SZANK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1478 WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 |
| Applicant: | SZKMX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2994 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 29 January 2009 |
| Date of Last Submission: | 29 January 2009 |
| Delivered at: | Sydney |
| Delivered on: | 22 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appeared in person |
| Solicitors for the Applicant: | No solicitor on the record |
| Counsel for the Respondents: | Mr Johnson |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2994 of 2008
| SZKMX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This application is brought by the Applicant for review of a decision of the Refugee Review Tribunal signed on the 8th October 2008 and handed down on 21st October, affirming the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
The Applicant seeks:
i)A declaration that the decision was invalid and contrary to law;
ii)An order that “the decisions and each of them” referred to above be quashed or set aside;
iii)An order that the matter be remitted to a differently constituted Refugee Review Tribunal to be determined in accordance with law.
The orders that are sought appear to be on a standard form application circulating in the community, because the same erroneous wording keeps appearing. Order 2 seeks an order quashing the decisions and each of them, although it is patently obvious that there is only one decision that is the subject of the application, and that is the decision of the Refugee Review Tribunal. The Court has no power to review the delegate’s decision.
I have previously remarked[1] about the application for an order remitting the Applicant’s application to a differently constituted Refugee Review Tribunal, pointing out that the Full Court of the Federal Court has cast doubt on the power of this Court to make an order about the constitution of the Tribunal (see SZEPZ v Minister for Immigration and Multicultural Affairs[2] at [30]), obviously to no effect. Suffice it to say that any order remitting a matter to the Tribunal will leave the constitution of the Tribunal to the Principal Member.
[1] On 42 separate occasions
[2] [2006] FCAFC 107
The Applicant relies on two basic grounds of review:
a)There was an error of law in the Tribunal’s decision constituting a jurisdictional error; and
b)There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
Those two grounds are also “pro forma” grounds and, as counsel for the First Respondent submits, one needs to go to the particulars to understand what is alleged. In summary, the grounds, taken from the particulars, allege:
i)Bias, or lack of good faith;
ii)A failure to comply with s.425 of the Migration Act;
iii)A failure to consider certain relevant material; and
iv)The Applicant’s statement that “In summary, I have never ever agreed that my application has been assessed by the Tribunal fairly and carefully”.
The Applicant’s particular 4 is not a ground of review and will not be considered further.
The Minister for Immigration and Citizenship, the First Respondent to the application, has filed a bland Response consenting to an order listing the matter for final hearing but opposing the ultimate application.
Background
The Applicant arrived in Australia on 2nd August 2006. He claimed to be a citizen of China who feared persecution from the authorities in that country because of his anti-government activities. He applied for a Protection (Class XA) visa on 29th August 2006. A delegate of the Minister refused the application for a visa on 21st November 2006.
On 22nd December 2006 the Applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision. The Applicant attended a hearing of the Tribunal on 2nd February 2007. In a decision signed on 5th March 2007 and handed down on 20th March, the Tribunal affirmed the delegate’s decision not to grant the Applicant a protection visa.
The Applicant sought judicial review of the Tribunal decision and on 31st July 2007 Cameron FM made orders by consent, issuing writs of certiorari and mandamus.
The Tribunal invited the Applicant to attend another hearing, which took place on 18th October 2007. The Tribunal was differently constituted. The Applicant attended the hearing and produced a New South Wales Learner Driver Licence.
The Tribunal handed down its decision on 13th November 2007, affirming the delegate’s decision not to grant the Applicant a Protection (Class XA) visa.
The Applicant again sought judicial review of the Tribunal decision. On 12th March 2008, Emmett FM dismissed the application (SZKMX v Minister for Immigration & Anor[3]). The Applicant appealed. On 6th June 2008, Reeves J allowed the appeal, setting aside the orders of the Federal Magistrates Court, making orders in the nature of certiorari and prohibition and remitting the matter to the Tribunal to be determined according to law (SZKMX v Minister for Immigration and Citizenship[4]).
[3] [2007] FMCA 301
[4] [2008] FCA 856
The Decision of the Refugee Review Tribunal
The Refugee Review Tribunal, differently constituted, invited the Applicant to a hearing on 28th August 2008. He attended the hearing and gave evidence with the assistance of an interpreter in Mandarin.
After the hearing, the Tribunal wrote to the Applicant on 3rd September 2008. The letter was headed Invitation to Comment on or Respond to Information in Writing and was clearly intended to comply with the requirements of s.424A of the Migration Act. The letter drew the Applicant’s attention to certain items of information that the Tribunal considered would, subject to any comments or response he made, be the reason or a part of the reason for affirming the decision under review.
The information was:
a)The fact that the Applicant had not mentioned a substantial claim in his statutory declaration supporting his visa application, which was how exactly he had managed to leave China. The Tribunal observed that this omission could raise doubts about the veracity of his claims and general credibility.
b)The fact that the Applicant omitted to mention a significant date in his “lengthy and comprehensive” statutory declaration, which was the date he claimed that he and other workers were arrested. The Applicant had given evidence at the Tribunal hearing that the date was 15th August 2003, and the Tribunal expressed the view that the omission of the date from his statutory declaration was “odd”.
c)The fact that the Applicant and others who were arrested were sent to Court on 15th November 2005. The Tribunal considered it “odd” that the Applicant should have omitted to mention the specific date in his “lengthy and comprehensive” statutory declaration.
d)The fact that the Applicant made no mention of the date when he claimed to have been release from detention, 17th March 2006, in his statutory declaration. Again, the Tribunal found it odd that he would have omitted to mention such a specific date in his “lengthy and comprehensive” statutory declaration.
In each case, the Tribunal’s letter told the Applicant that the omission of this information “could raise doubts about the veracity of your claims and general credibility”.[5] The Tribunal asked the Applicant to provide his written comments or response by 17th September 2008.
[5] Court Book 181
The Applicant responded to this request for information on 17th September 2008. His migration agent sent to the Tribunal a statutory declaration, in which the Applicant acknowledged that he had not provided specific dates and details in his statutory declaration but said that he had suffered serious financial difficulties after his arrival in Australia and had to “minimize” the information given in that declaration to keep the cost down. He referred to the fact that he had attended three Tribunal hearings and had been asked different questions each time and reiterated his claim to fear persecution.. He also referred to the difficulty of being separated from his wife and daughter, who remained in China.
The Tribunal signed its decision on 9th October 2008 and handed the decision down on 21st October. The Tribunal affirmed the decision not to grant the Applicant a protection visa.
In its Decision Record[6] the Tribunal set out a summary of the Applicant’s claims to have been arrested and detained for having taken part in what was considered to be an anti-government protest. The Tribunal stated that it had considered the Applicant’s evidence given to the hearings on 2nd February and 18th October 2007. It set out a summary of the Applicant’s evidence at the hearing on 28th August 2008, as well as the s.424A letter and response. The Tribunal also referred to Independent Country Information about exit procedures for people attempting to leave China and about the prevalence of document fraud in China.
[6] which appears in the Court Book at pages 190 to 207
The Tribunal’s Findings and Reasons
The Tribunal found that the Applicant was a national of China and assessed his claim against that country. It summarised his claim of a fear of persecution by the Chinese authorities because of his involvement in protests and demonstrations relating to the closing of the factory in which he had worked. It noted his claims that he could not obtain further employment because of the PSB and that his wife beck in China could not obtain employment because of her association with him.
The Tribunal did not accept that the Applicant had a well founded fear of persecution for a Convention reason, “including but not limited to actual and/or imputed anti-government political opinion and/or activity”.[7]
[7] Court Book 203
The Tribunal noted that two previous RRT Members had each had concerns about the Applicant’s credibility and said:
For similar and different reasons, the Tribunal is satisfied that that the applicant is not a credible witness. The Tribunal conducted a relatively lengthy hearing, giving the applicant a third opportunity to put his case fully before the Tribunal.[8]
[8] Ibid
The Tribunal considered the Applicant’s explanations for omitting certain information from his original statutory declaration but was not persuaded by them. It then set out its reasons why it was not so persuaded.
In particular, the Tribunal referred to a document that the Applicant had produced, called a Certificate of Release, which was dated 17th March 2006. The Tribunal questioned the authenticity of that document and expressed a lack of confidence that it had not been obtained through bribery. The Tribunal stated:
The Tribunal is of the view that document fraud is prevalent in China and it is not difficult to obtain ‘authentic’ documents fraudulently (see country information). In consideration of the evidence and given those observations, the Tribunal does not accept that “Certificate of Release” dated 17 March 2006, contains truthful and/or accurate information, and consequently, the Tribunal does not give it weight.[9]
[9] Court Book 206
The Tribunal did not accept that the Applicant had suffered any of the harm that he claimed. It considered and rejected two letters from the Applicant’s wife, stating that it did not accept that the letters were reliable evidence of the facts contained in them.
The Tribunal found that there was no plausible evidence that the Applicant had suffered or would suffer persecution because of his political opinion or imputed political opinion, or because he was a member of a particular social group of for any other Convention reason and he did not have a well-founded fear of persecution for a Convention reason.
Application for Judicial Review
In his application, filed on 18th November 2008, the Applicant claims both an error of law constituting a jurisdictional error and a procedural error constituting an absence of natural justice. He sets out 4 particulars, the fourth of which, as I have previously mentioned, is not a ground of review at all.
Particulars 1 to 3 are, in effect, the grounds upon which the Applicant relies and, for convenience, will be referred accordingly.
The Applicant’s ground 1 makes a claim of bias or a failure to act in good faith. The Applicant expresses doubts that the Tribunal Member was willing to assess his claims properly and fairly or had considered his application carefully and thoroughly. In particular, the Applicant states:
a) Once again, I have to say that the Presiding Member arranged a hearing for me as a mere formality, or did it perfunctorily. During the Tribunal’s hearing, I never thought that the Presiding Member was willing to, or genuinely intended to, provide me a fair chance to present my oral evidences and to give my arguments.
b) Once again, I have to say that I strongly believe that the Presiding Member has already made his[10] decision before the Tribunal’s hearing, and thus the Tribunal’s hearing was just for the purposes to go through the motions.
[10] sic
The Applicant’s ground 2 says, in full:
Similarly, based on the evidence that I have mentioned above, I do not think that the Presiding Member has, genuinely and honestly, complied with the obligations under s.425 of the Act because:-
a) I have, in fact, been denied the right to present my oral evidences in support of my application fairly; and
b) I have, in fact, been denied the rights to give my argument against the issue arising from the tribunal in relation to my review application.
The Applicant’s ground 3 claims that the Tribunal failed to consider, properly and fairly, that he had many difficulties in preparing his claims from the very beginning. He sets out 3 sub-paragraphs of matters for consideration which are essentially a word-for-word repetition of the matters contained in his statutory declaration submitted in reply to the Tribunal’s s.424A letter.[11]
[11] The statutory declaration is set out in full on pages 183 and 184 of the Court Book.
The Applicant did not provide any written outline of submissions but he made an oral submission at the hearing. He told the Court through an interpreter that he believed that the Refugee Review Tribunal did not want to fairly consider his application because:
i)In his original written application he did not describe in detail how his friends helped him to go overseas; and
ii)In his written application he did not mention the detailed time (and presumably date) when he was arrested in August 2003.
He said that the RRT was unfair to reject his application on those two grounds. It was impossible to put all of those details in his original application even though his migration agent helped him.
The Applicant said that the RRT arranged a hearing to give him a chance to provide oral evidence. If in his written application he had stated all the detailed reasons it would not have been necessary for the RRT to give him a hearing. Therefore, he believed that the RRT was unfair.
In answer to a question from the Bench to explain why in Ground 2 or Particular 2 he claimed to have been denied the right to present oral evidence, the Applicant said that he went to the hearing to give evidence. He agreed that he had the services of an interpreter. He said that he was asked questions to which he could give answers, but the interpreter asked him to wait. He said that he did not say to the Tribunal wanted he wanted to say.
Counsel for the Minister, Mr Johnson, submitted that whilst the Applicant had suggested that the Tribunal had found against him on two grounds each relating to things not said in his original application, he had not fully stated the basis on which the Tribunal found against him. There were things said at the hearing that were not in his original statutory declaration and the Refugee Review Tribunal considered that if they were true they would have been so mentioned.
Mr Johnson put to the Court that the Tribunal had sent a section 424A letter to the Applicant outlining its concerns and the Applicant had responded with a statutory declaration. The Tribunal had referred to the s.424A letter and the Applicant’s response to it in its decision.
As to the Applicant’s Ground 3, Mr Johnson submitted that it is a recasting of the Applicant’s s.424A response. He said that the Tribunal plainly had considered what the Applicant had said but was still not satisfied. There was no procedural error or any failure to consider an integer.
Mr Johnson said that the Tribunal had asked the Applicant at the end of his evidence if he had anything else to say, at paragraph 58 of the decision.[12]
[12] Court Book 199
Mr Johnson also noted that there was not any transcript of the hearing. The Tribunal Hearing Record which appears at page 171 of the Court Book shows that the hearing lasted for over two hours. There was no evidence of any breach of s.425 of the Act as understood in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[13] or of common law procedural unfairness.
[13] (2006) 228 CLR 152; 231 ALR 592
It was submitted that the present case is materially distinguishable from the one referred to in the decision in SZKMX v Minister for Immigration and Citizenship[14].
[14] [2008] FCA 856
The Tribunal referred to and discussed the Certificate of Release at pages 194, 198, 205 and 206 of the Court book. The Tribunal did not accept the authenticity of the Certificate of Release.
In reply, the Applicant told the Court that he came from a small city in China and he was able to leave with the help of friends. It was not achieved through bribery. He had mentioned in his original application that it is easy to go overseas. He had gone to Beijing to obtain his visa.
Conclusions
The Applicant’s first ground alleges some form of bias or a failure to act in good faith, which is a serious allegation in each case, and would need to be strictly alleged and strictly proved (SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[15] at [42]-[48]; Minister for Immigration and Multicultural Affairs v Jia Legeng[16] at 530; SBBA v Minister for Immigration and Multicultural and Indigenous Affairs[17] at [15]). The Applicant claims that the Tribunal hearing was perfunctory or “a mere formality” but the Tribunal Hearing Record[18] shows that the hearing started at 10:37 am and did not finish until 12:55 pm. The Tribunal said of the hearing:
The Tribunal conducted a relatively lengthy hearing, giving the applicant a third opportunity to put his case fully before the Tribunal.[19]
[15] (2002) 194 ALR 749; [2002] FCAFC 361
[16] (2001) 205 CLR 507
[17] [2003] FCAFC 90
[18] Court Book 171
[19] Court Book 203
After the hearing, the Tribunal wrote its s.424A letter to the Applicant on 3rd September 2008. There was no transcript of the hearing provided, but the Tribunal Decision Record shows that the summary of the Applicant’s evidence before the Tribunal on 28th August 2008 covers a full four pages, from 195 to 199.
As counsel for the Minister pointed out, the Tribunal had also written to the Applicant’s migration agent on 11th July 2008, inviting him to provide any documents or written arguments that he wished the Tribunal which he had not already provided.[20]
[20] Court Book 163
There is no evidence that the hearing was perfunctory or a mere formality.
The Applicant also claimed that the Tribunal Member had already made her decision before the hearing and therefore the hearing was just “to go through the motions”. There is no evidence of this. There is no basis for a finding of apprehended bias as understood in NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs[21] at [14] or Re Refugee Review Tribunal; Ex parte H[22] at [27]-[32].
[21] (2004) 214 ALR 264
[22] (2001) 179 ALR 425
The Applicant has not led any evidence that would suggest any bias, whether actual or apprehended, or any lack of good faith on the part of the Tribunal. The Applicant’s submission that the Tribunal was unfair to reject his application relates to the Tribunal decision itself rather than any complaint about the way the hearing was held.
This ground has not been made out.
The Applicant’s second ground claims that he was denied the right to present his oral evidence and give argument against the issue arising from the Tribunal relating to his application. He provided no evidence in support of that claim.
The Applicant was asked about that claim at the hearing. He agreed that he had attended the hearing and had given evidence with the assistance of an interpreter. He said that he was asked questions and could give answers to those questions “but the interpreter asked me to wait”. The Applicant did not explain that comment but the inference is that from time to time the interpreter asked him to wait until something had been translated from one language or another.
No complaint was made about the ability of the interpreter. I note from the RRT Hearing Record that the interpreter is recorded as having attained NAATI Level 3, which is an appropriate level for Courts or Tribunals.
The Applicant said at the hearing that he did not say to the Tribunal what he wanted to say, but he did not explain why. The Tribunal Decision Record contains a summary of his evidence that appears to be quite comprehensive. At the end of the evidence that Applicant was asked if he wished to add anything:
The Tribunal asked the applicant if he had anything else to say. The applicant said that he was under pressure. Asked to clarify, he said that his wife has no source of income and that his in-laws and parents are supporting them. He said he called his wife the day before yesterday and she told him that Mr Li was still detained. The Tribunal indicated that the matter would be considered further.[23]
[23] Court Book at 199
This passage makes it clear that the Applicant was offered the opportunity to add to his evidence and did so. There is no evidence that he was not able to give the evidence about his case that he wanted to give.
Again, the Tribunal wrote its s.424A letter to the Applicant after the hearing, asking him to comment on certain items of information that may be the reason or part of the reason for affirming the Tribunal decision. The Applicant provided a statutory declaration in reply, prepared with the assistance of his migration agents. In my view, the Tribunal complied with the requirements of s.424A and the Applicant was not deprived of any right to make submissions.
The Applicant complains that the Tribunal did not comply with its obligations under s.425. This is a matter that has been the subject of a decision by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs. The Tribunal ultimately decided this case on the matter of credibility, which is very much a matter for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham[24]). The delegate had made adverse findings about the Applicant’s credibility[25] as had the two earlier Tribunals. This is a case where the Applicant should have been well aware that everything that he said in support of his case was in issue.
[24] (2000) 168 ALR 407; [2000] HCA 1
[25] Court Book 41
The Applicant has not shown any breach of s.425 of the Act. His second ground has not been made out.
The Applicant’s third ground merely repeats what was said in his statutory declaration in reply to the letter he received from the Tribunal under s.424A of the Act with a claim that the Tribunal did not consider it. The Tribunal specifically did consider that material[26] and rejected it. This ground is in effect a challenge to the Tribunal’s decision on its merits and does not establish any failure by the Tribunal to consider relevant material. No jurisdictional error is shown and this ground does not succeed.
[26] Court Book 199-200, 203-205
The Applicant’s fourth ground, a statement of his ongoing disagreement that the Tribunal assessed his application fairly and carefully, is not a ground of review.
A further point raised by counsel for the Minister concerns the Tribunal’s treatment of the Certificate of Release. Mr Johnson submits that it is free from error.
The submission has been made, “formally and protectively” that the decision of Reeves J in SZKMX v Minister for Immigration and Citizenship is wrong. That is a matter for comment by this Court. The decision is a decision on appeal from the Federal Magistrates Court and it binding on this Court.
The Minister submits that, in any event, the decision does not compel the decision of the Tribunal now under review to be set aside for these reasons (summarised):
a)The decision concerns another decision of the Tribunal and not the one currently under review (obviously!);
b)The Tribunal’s statement in paragraph [88] of the decision from the words “moreover, the Tribunal is of the view” to the end of the paragraph is in the alternative and the Tribunal’s decision did not depend on those contingent findings;
c)The Tribunal had a reasonable basis for its finding that it would not have given the document any weight;
d)There was evidence contrary to the Certificate of Release, being the Independent Country Information, which the Tribunal accepted, about the difficulty in leaving China if on bail[27]; and
e)Any “no evidence principle” may be limited to jurisdictional facts in cases such as this where it is necessary to establish jurisdictional error. It does not apply to mere disbelief of evidence and the Tribunal does not need positive evidence to the contrary for it not to be satisfied that particular evidence is not correct (WAJS v Minister for Immigration and Multicultural and Indigenous Affairs[28] at [12] and [17]).
[27] See SZANK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1478 per Hely J at [16]
[28] [2004] FCAFC 139
I am satisfied that no error is shown in the Tribunal’s treatment of the Certificate of Release. The Tribunal accepted that there is a high incidence of fraudulent documentation in China and referred to various pieces of independent information to this effect.[29] It is a matter for the Tribunal to decided what weight should be given to country information as part of its fact finding function, and the accuracy of the information and its relevance to the applicant is one for the Tribunal and not the Court (SZANK v Minister for Immigration and Multicultural and Indigenous Affairs per Hely J at [16]).
[29] Court Book 202
The Applicant has not made out any jurisdictional error in the Tribunal decision and I have not discerned any arguable error. It follows that the Tribunal decision is a privative clause decision and not subject to orders in the nature certiorari or mandamus or a declaration that the decision is invalid or contrary to law (Migration Act, s.474).
The application will be dismissed. I will hear the parties on the question of costs.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 16 April 2009
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