SZKNC v Minister for Immigration and Anor
[2007] FMCA 1301
•30 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKNC v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1301 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicants protection visas – applicant is citizen of the People’s Republic of China claiming fear of persecution as Falun Gong member – credibility – whether Tribunal failed to comply with the requirements of Migration Act 1958 (Cth) s.424A – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 425, 474 |
| NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 VTAG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 91 SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 773 |
| Applicant: | SZKNC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1221 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 25 July 2007 |
| Date of last submission: | 25 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 30 July 2007 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Ms Clegg |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,200.00.
I allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1221 of 2007
| SZKNC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 7th March and handed down on 27th 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. He initially filed an application and an affidavit in support on 16th April 2007, and then filed an amended application on 18th June. The orders that he seeks are set out in paragraph 11 of the amended application. They can be summarised as follows:
a)He seeks a declaration that the decision of the Refugee Review Tribunal is invalid and contrary to law;
b)He asks the Court to set aside the decision of the Refugee Review Tribunal; and
c)He seeks an order in the nature of mandamus to remit his application to the Tribunal for consideration according to law.
I have made it clear to the Applicant at the hearing on 25th July that in order for the Court to make orders in the nature of certiorari setting aside the Tribunal decision or mandamus remitting the application to the Refugee Review Tribunal, the Court must be satisfied that the Tribunal decision is affected by jurisdictional error. That does not mean that the Court reconsiders all the factual evidence and makes its own findings on the facts. The Court considers the decision of the Tribunal in order to ascertain whether an error of law or procedure has been made that could lead to a finding of jurisdictional error.
Background
The background to this matter is that the Applicant is a citizen of the People’s Republic of China. He arrived in Australia on 8th August 2006 and he applied to what was then the Department of Immigration and Multicultural Affairs for a Protection (Class XA) visa on 25th August 2006. His application for a visa was refused on 17th November 2006. On 1st December 2006 the Applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision.
The Tribunal wrote to the Applicant on 11th December informing him that the Tribunal had considered the material before it but was unable to make a decision in his favour on that information alone. Accordingly the Tribunal invited the Applicant to attend a hearing on 20th February 2007.
The Applicant completed the ‘Response to Hearing Invitation’, indicating that he did wish to attend and that he would need an interpreter in the Cantonese dialect of the Chinese language. The Applicant attended the hearing and gave evidence. He had the assistance of an interpreter on that occasion.
The Applicant’s claims are of a well founded fear of persecution for reason of being a Falun Gong member who opposes the oppression of Falun Gong members by the Chinese government and the Chinese Communist Party. He claimed to have been detained for three days in March 2001 and fined for attending a Falun Gong function, and he claimed that he was arrested in February 2004 for using the internet to spread Falun Gong materials. He claimed that he was sentenced to one year of labour and re-education for the crime of disrupting social safety.
The Tribunal asked the Applicant a number of questions about his application, and particularly about his history. The Tribunal noted that the Tribunal Member put to the Applicant that he claimed that Falun Gong was his religion, but independent country information made it clear that Falun Gong is not a religion and that information on the Falun Gong website states that it was non-commercial, non-political and non-religious. The Applicant claimed that when he practised Falun Gong he thought it was his personal belief and when pressed as to whether he claimed that it was a religion or not, he said he thought that it was good for his health and safety and therefore he treated it as a religion. The Tribunal asked him about what would happen if he returned to China, and asked him about his practice of Falun Gong in Australia.
The Tribunal signed its decision on 7th March 2007 and a copy of the Tribunal decision record can be found at pages 86 through to 102 of the Court Book. The Tribunal wrote to the Applicant on the same day of the hearing, but after the hearing. This was a letter headed ‘Invitation to Provide Information’ and sets out a number of items of information with this introduction:
The following information indicates that, notwithstanding the claims you have made in your protection visa application and at the Tribunal hearing you attended, and subject to any comments that you may make, you may not have a well-founded fear of serious harm amounting to persecution for a Convention reason in China.
The Tribunal then set out what that information was and set out what conclusions the Tribunal may draw from that information, subject to any comments that the Applicant might make. The letter asked the Applicant to provide comments in writing by 6th March 2007. A copy of that letter was set out in full on pages 68 to 70 of the Court Book.
The Applicant did reply to the Tribunal’s letter and his letter in reply dated 27th February 2007 was received by the Tribunal on 5th March 2007. A copy of that letter appears at pages 71 to 73 of the Court Book. In that letter the Applicant set out why it was that he claimed that Falun Gong was his religion, and he also provided explanations about the amount of money that he paid to get his passport in his own name and how he was able to leave China from Guangzhou airport without any trouble. He also provided an explanation as to why he had obtained his passport in June 2005 but did not leave China until 7th August 2006, some 13 months later.
The Tribunal’s decision record, as I said, is set out in the Court Book. In that decision the Tribunal considers the Applicant’s claims and evidence prior to the hearing and the Applicant’s evidence at the hearing. The Tribunal also considered the Applicant’s statement and comments in reply to the Tribunal’s s.424A letter of 20th February 2007. I note that there appears to be a typographical error at page 93 of the Court Book in that the letter from the Tribunal to the Applicant is said to have been dated on 20th February 2006. That is clearly a typographical error because the Applicant had not even arrived in Australia on 20th February 2006, let alone applied to the Refugee Review Tribunal. Regrettably the Court has become used to seeing typographical errors appearing in Refugee Review Tribunal decisions.
The Tribunal sets out its findings and reasons at pages 96 through to 102 of the court book.
The Tribunal’s Findings and Reasons
The Tribunal accepted that the Applicant was a national of the People’s Republic of China. The Tribunal noted that the Applicant had produced a passport issued by the Chinese government. However, the Tribunal was sceptical, and indeed doubtful, that the Applicant was a Falun Gong practitioner as he claimed. The Tribunal said at Court Book page 96:
The claims made by the Applicant in his protection visa application are very general and limited and reveal no knowledge or understanding of Falun Gong.
The Tribunal then set out why the Tribunal had come to that view. The Tribunal’s reasons for its doubts about the Applicant’s claims of being a Falun Gong practitioner run from page 96 through to page 102 of the Court Book. The Tribunal did accept that the Applicant had been involved in one demonstration, but was not satisfied that because of his involvement in that activity that he would be subject to serious harm amounting to persecution if he were to return to China. The Tribunal in fact were satisfied that the Applicant’s involvement in that demonstration, which was in Australia, was designed to enhance his claim for a protection visa.
The Tribunal set out at page 102 of the Court Book that the Tribunal had considered all of the claims made by the Applicant, both individually and collectively, and was satisfied that there was not a real chance that the Applicant would be subjected to serious harm amounting to persecution for a Convention reason if he were to return to China, either at the time of the decision or in the reasonable future.
The Tribunal affirmed the delegate’s decision not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
The Applicant sets out the grounds upon which he relies in the amended application to which I have referred. He also sets out the grounds and particulars of those grounds in a written outline of submissions filed on 26th June 2007.
In his amended application the Applicant claimed that there were errors of law in the Tribunal’s decision constituting jurisdictional error. In his outline of submission the Applicant claims that the Tribunal committed jurisdictional error of law by constructively failing to exercise its jurisdiction in its conduct of the review. In particular:
i)The Applicant claims a denial of natural justice by not considering the context in which the Applicant will face persecution and serious harm for being a Falun Gong member in China; and
ii)The Applicant claims that the Tribunal has not considered the evidence which is in favour of the Applicant, but only considered the evidence which is not in his favour.
The Applicant refers in his amended application to independent country information cited by the Tribunal, but claims that the Tribunal did not comply with its obligations under s.424A of the Migration Act in respect of that information. He claimed that the Tribunal failed to give him important information completely and clearly before the hearing, which has been used as the reason, or part of the reason, for affirming the decision that is under review.
The Applicant claimed that the Tribunal had failed to ensure that he understood why the information was relevant to the review, and said that because of that it was impossible for him to have a fair chance to comment on the independent country information before or during the hearing. He claimed that the Tribunal should provide him with complete independent country information or the particular information which would be the reason, or a part of the reason, for affirming the decision that is under review by one of the methods specified in s.441A of the Migration Act before the hearing, so that he could make any comments on the information before the hearing in writing, or during the hearing verbally.
In considering that claim it is clear that the Applicant has entirely misconceived the meaning and effect of s.424A of the Migration Act. Not only is there no obligation on the Tribunal to provide independent country information to the Applicant before the hearing in order that the Applicant may comment upon it orally at the hearing, but s.424A does not apply to independent country information at all. It appears to me to be necessary to point out that s.424A(1) of the Migration Act says:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
It is apparent that the obligation under sub-s.424A(1) does not arise before the hearing. The view of the operation of s.424A that the Applicant, or at least his advisor, appears to hold appears to be confused with the operation of s.425. Section 425 says:
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
The fact that the Tribunal wrote to the Applicant inviting him to attend the hearing did not indicate that it was the Tribunal’s intention to refuse the application. The Tribunal wrote to the Applicant, as I said, on 11th December 2006 saying:
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
The test that the Tribunal must apply under s.425 is to decide whether on the information before it the Tribunal is satisfied that it can make a decision in the Applicant’s favour or not. If the Tribunal is satisfied that it can make a decision in the Applicant’s favour based on the information that it already has, then there will be no hearing, the Applicant is not entitled to a hearing and the Tribunal makes the decision in the Applicant’s favour. If the Tribunal is not satisfied that the information is sufficient to enable it to make a decision in the Applicant’s favour, then the Tribunal must invite the Applicant to attend a hearing and give evidence.
A decision to invite the Applicant to attend a hearing and give evidence does not equate to a decision to refuse the application. The Tribunal has no power to refuse the application if a hearing has not been held in those circumstances. That is why it invites the Applicant to attend a hearing to give oral evidence and, if necessary, provide further written evidence. Then, and only then, can the Tribunal make its decision. It follows that an obligation under sub-s.424A(1) of the Migration Act does not arise before the hearing.
The other matter that needs to be considered in respect of the Applicant’s claim of a breach of sub-s.424A(1) is that the information, which is independent country information, is not subject to
sub-s.424A(1) in any event. Sub-section 424A(3) says:
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant for review gave for the purpose of the application; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
The independent country information to which the Applicant refers is information covered, and excluded, by the operation of
sub-s.424A(3)(a) of the Migration Act. It is well established that the Tribunal may rely on independent country information because under sub-s.424(1) in conducting a review the Tribunal may get any information that it considers relevant. Thus there is no objection to the Tribunal relying on independent country information, and the weight that it gives to that information is a matter for the Tribunal itself as part of its fact finding function. (See NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]. See also VTAG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 91; (2005) 141 FCR 291 at [41], and also SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 773; (2005) 144 FCR 368 at [44]).
The Applicant also claimed that the Tribunal only cited independent country information which is not in favour of his application and did not consider other independent country information which was in favour of his application. The weight that the Tribunal gives to independent country information is a matter for the Tribunal itself. It follows that that ground must fail.
I would also comment that the s.424A letter written by the Tribunal to the Applicant on 20th February 2007 in fact does refer the Applicant to independent country information and seeks the Applicant’s comments on it in writing. Even more, the Applicant did provide comments in writing in his letter of 27th February 2007 which the Tribunal received on 5th March. The Applicant claims that the Tribunal failed to use correct and latest information to assess his review application in a correct and reasonable method. The information relied upon by the Tribunal is a matter for the Tribunal itself. There is no obligation on the Tribunal to conduct its own investigations of the Applicant’s claim.
The Applicant claims procedural errors in the Tribunal’s decision constituting an absence of natural justice. He did not set out what those procedural errors were and how he was denied natural justice, and I asked him about that at the hearing. His answer was that the Tribunal made mistakes and that they redirected him in a wrong direction. He said the Tribunal had been using information from mainland China and the Communist Party and he did not know about it. There is no evidence of that.
The Applicant in his outline of submissions made similar claims leading to a claim of denial of natural justice. There is just no evidence of it. All the natural justice claim amounts to is a challenge to the Tribunal’s factual findings. Neither the Applicant’s amended application nor his outline of submissions show any jurisdictional error. I accept the fact that the Applicant is not legally represented and the Court must apply its own test of conducting an independent assessment of the Tribunal decision in order to ascertain whether there is an arguable case of jurisdictional error. Certainly no such jurisdictional error appears in the decision or the supporting material. The Applicant’s original application does not set out anything different in substance from his amended application.
The term “natural justice” seems to be as misused in claims of jurisdictional error on the part of the Refugee Review Tribunal as claims of breaches of s.424A of the Migration Act. It is not a denial of natural justice if a Tribunal decides against an applicant on the basis of the information before the Tribunal. It is not a denial of natural justice if the Tribunal relies on information in independent country information rather than on the Applicant’s claims. It is not a denial of natural justice if the Tribunal does not believe the Applicant’s evidence.
In this case the Tribunal appears to have taken steps to ensure that the Applicant was granted natural justice. He was treated with procedural fairness. He was invited to attend a hearing. He gave evidence at the hearing. The Applicant’s story was queried by the Tribunal and at the conclusion of the hearing the Tribunal wrote to the Applicant a lengthy letter under the provisions of s.424A of the Migration Act setting out the Tribunal’s concerns and including a reference to independent country information that did not assist the Applicant’s case. The Tribunal sought the Applicant’s comments on that information and quite clearly considered those comments. The Tribunal did not raise any fresh issues that had not been considered in the delegate’s decision.
In my view there is no jurisdictional error. Because no jurisdictional error has been made out the Tribunal’s decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. Privative clause decisions are final and conclusive and are not subject to orders in the nature of certiorari or mandamus and the Court does not have the power then to make a declaration that the decision is invalid or null and void.
It follows that the application must be dismissed. I will now consider the question of whether the Applicant should play the First Respondent’s costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM.
Associate: V .Lee
Date: 7 August 2007
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