SZKNO v Minister for Immigration
[2007] FMCA 1659
•12 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKNO v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1659 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – procedural fairness – no s.425 obligation in respect of satisfaction required under s.91R(3) – doubts or inconsistencies or the absence of evidence are not “information” under s.424A. |
| Migration Act 1958, div 4 of pt 7, ss.91R, 91X, 422B, 424A, 425, 477 |
| Minister of Immigration and Citizenship v SZKKC [2007] FCAFC 105 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Kioa v West (1985) 159 CLR 550 SZILQ v Minister for Immigration and Citizenship [2007] FCA 942 SZBYR v Minister of Immigration and Citizenship [2007] HCA 26 |
| Applicant: | SZKNO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1266 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 14 August 2007 |
| Date of Last Submission: | 14 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 12 October 2007 |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondents: | Mr. S. Lloyd |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1266 of 2007
| SZKNO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 14 April 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 27 February 2007 and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 9 December 2006 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant as follows:
The applicant is currently married and has 2 children. The applicant’s wife and children live in Shanghai. Before leaving Shanghai, the applicant worked for [name given]. The applicant worked at [name given] for 23 years and stopped working there in May/June 2005. (Court Book (“CB”) page 76).
The applicant claims to fear persecution in China because of his religious beliefs.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-8 of the Tribunal’s decision (CB 75-79). Relevantly, they are in summary:
a)the applicant began practising Christianity in 2003 when he went to a colleague’s home and listened to his colleague and friends talking about Christianity. The applicant believed that Christianity could help him with his problems at work. He went to his colleague’s Christian meetings. They read the Bible and talked about the Bible;
b)in April or May 2004, the applicant had gone to a friend or colleague’s house and the police raided the home. The police said that the group was holding an illegal gathering and collected all the Bibles and took the applicant and the other people he was with away to the PSB. The applicant was detained for three days at the PSB. He was sentenced to “Reform Through Labour” and was charged with holding an illegal gathering;
c)the applicant was released in May 2005. When he got home, his wife told him that she wanted a divorce. The applicant was divorced in April 2006 but in response to questioning by the Tribunal said that he had remarried;
d)when the applicant was released from Reform Through Labour, he was unemployed because his work unit had expelled him;
e)after his release from detention he was watched and monitored and was constantly visited by the police and the neighbourhood committee.
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 found that the applicant’s extremely limited understanding of Christianity was highly inconsistent with his claim to have been a practising Christian in China. The Tribunal did not accept that this could be explained, as the applicant claimed, because the applicant was not baptized. Nor did the Tribunal accept that the applicant’s extremely rudimentary knowledge of Christianity could be explained by memory problems or stress.
b)the Tribunal did not accept that the applicant practised Christianity in China. The Tribunal therefore did not accept that the applicant was detained and subject to Reform Through Labour for a year as the result of his practice of Christianity, nor that the applicant was subject to visits from the police and neighbourhood committee following his claimed release from detention;
c)in relation to the applicant’s Christian worship in Australia, the Tribunal was not satisfied that he attended church in Australia otherwise than for the purpose of strengthening his claims to be a refugee. Impliedly, the Tribunal disregarded this conduct by reason of s.91R(3) of the Act.
In essence the Tribunal found:
The Tribunal considers that the applicant will not practice Christianity or proselytize in China because he has not done so in the past and is not committed to being a Christian in the future. As such, the Tribunal does not accept that there is a real chance that the applicant will be perceived to be associated with Christianity on his return to China or that he will be persecuted for reasons of any real or imputed religious beliefs or for any other Convention reason. (CB 81)
Proceedings in this Court
The application states that the applicant received notification of the Tribunal decision on 20 March 2007. The application commencing these proceedings was not filed until 19 April 2007 with the ostensible consequence that the applicant was required pursuant to s.477 of the Act to obtain leave to bring the proceedings out of time. However, counsel for the Minister observed that it appears that the applicant did not attend the handing down of the Tribunal decision and that the decision was sent to the applicant by way of his agent (CB 70-71). In light of the decision of Full Court of the Federal Court in Minister of Immigration and Citizenship v SZKKC [2007] FCAFC 105 it would therefore appear that the time for commencement of proceedings has been not yet begun to run. Consequently, the Minister made no issue that the application had been brought out of time. Similarly, I am satisfied that actual notification of the Tribunal’s decision as required by s.477 and as explained by the Full Court in SZKKC’s case has not been yet effected with the result that the proceedings have not been bought out of time and an extension of time under s.477 is not required.
The grounds of the application are:
1. Jurisdictional error has bee [sic] made;
2. procedural fairness has been denied;
3. RRT did not give me a letter to explain doubts
Dealing with each of these grounds in turn:
Jurisdictional error has been made
This ground appears to be a catch-all ground and does not identify in what way jurisdictional error is said to have occurred. No particulars have been supplied by the applicant and, as a consequence, this purported ground of review lacks any meaningful content and does not disclose any basis upon which the Tribunal decision ought to be set aside.
Procedural fairness has been denied
When the applicant refers to procedural fairness he is, in reality, speaking of natural justice. As Dawson J said in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 53:
In recent years the trend has been to speak of procedural fairness rather than natural justice in order to give greater flexibility to the extent of the duty than is possibly merely by reference to a curial model
His Honour drew on what was said by Mason, Wilson and Dean JJ, in Kioa v West (1985) 159 CLR 550 at 583-584, 601 and 631 respectively. Wilson J said at 601:
I have spoken of the dictates of procedural fairness because in the context of administrative decisions I think that such a phrase is an apt description of what natural justice requires.
Mason J said at 584-585:
where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statue. In Mobil Oil Australia Pty Ltd. v Federal Commissioner of Taxation, Kitto J pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on “the particular statutory framework” What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision maker is acting. Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; National Companies and Securities Commission v New Corporation Ltd.
In this respect the expression “procedural fairness” more aptly coveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e. in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate consideration of Salemi [No.2] per Jacobs J. (footnotes omitted).
Section 422B of the Act provides that div 4 of pt 7 is to be taken as an exhaustive statement the requirements of the natural justice hearing rule in relation to the matters with which it deals. That division contains ss.422B - 429A. The operation of s.424A will be discussed below in relation to the third pleaded ground but the applicant has not identified in what way the other requirements of the division may not have been observed.
The most obvious potential issue of concern is compliance with s.425 and the giving to the applicant of a real and meaningful invitation to attend the hearing conducted by the Tribunal. The applicant has put nothing before the Court to suggest that the invitation failed to meet those criteria. A consideration of the rehearsal by the Tribunal of the questions and answers passing between the applicant and the Tribunal member at the Tribunal hearing indicates that, in respect of the issues arising in relation to the decision under the review, the applicant was given a proper opportunity to give evidence and present arguments. The Tribunal’s decision records that the applicant was asked a number of questions by the Tribunal in relation to the issues which were decisive to his review application and it also indicates that he was able to respond and did provide answers which were responsive to the questions, even if of limited content and persuasiveness.
As recorded above, the Tribunal was not satisfied that the applicant’s Christian observances in Australia were undertaken otherwise than for the purpose of strengthening his claim to be a refugee. The implied disregard of this conduct by virtue of s.91R(3), raises the question, as suggested by the Minister, that an obligation fell on the Tribunal to identify the satisfaction required by s.91R(3) as an issue arising in relation to the decision under review in respect of which the Tribunal is required by s.425 of the Act to invite the applicant to give evidence and present arguments. SZILQ v Minister for Immigration and Citizenship [2007] FCA 942, Buchanan J considered the question of whether the Tribunal had to put an applicant on notice that the satisfaction required by s.91R(3) was an issue in the case. His Honour held that the burden under s.91R(3) lay on the applicant to satisfy the Tribunal about his motivation before the Tribunal was permitted to pay any regard to the applicant’s conduct in Australia, that conduct being the issue upon which the proceedings had been focused. His Honour further held that the Tribunal did not have a positive obligation to alert the applicant to the fact that it might conclude it should disregard his conduct in Australia. Moreover, in that case, his Honour observed that the issue which was central to the appeal before him was identified by the terms of the sub-section itself holding:
The RRT was not obliged to draw it to the Appellant’s attention or to warn him that it would disregard material about his conduct in Australia if he did not satisfy the RRT that the reasons for the conduct was genuine. (at [31]).
Ultimately, his Honour held that the Tribunal had failed to comply with s.425 because, after the conclusion of the Tribunal hearing, an additional element emerged in respect of which the applicant had not been given an opportunity to give evidence or present arguments at an oral hearing. But that is not the case here. Here, as in that aspect of SZILQ’s case where Buchanan J held that s.91R(3) did not generate any obligations under s.425, the genuineness of the applicant’s claim to be an observant Christian, and thus to fear persecution were he to return to China, was always an issue which was before the Tribunal. In this case, all the applicant’s claims were in issue given the following comments made by the delegate in her decision record:
I have considered all the information before me, and I note the lack of evidence provided by the applicant. I do not accept the claims that have been made by the applicant. I am not satisfied that they are credible, and therefore the applicant’s claims are not well founded” (CB 41).
The Tribunal records at page 5 of its decision that the applicant made no further claims and did not submit any further information or material with his review application. A consideration of the conduct of the Tribunal hearing which is set out at pages 5-8 of the Tribunal’s decision (CB 76-79) demonstrates that no additional issues were raised at that hearing, except to the extent that they emerged as a result of the Tribunal’s questioning and in respect of which the applicant gave evidence or made submissions. Consequently, even if the Tribunal had not raised with the applicant the issue of the genuineness of his commitment to Christianity, it was central to the review and had been identified by the terms of s.91R(3) itself with the result of no breach of s.425 has been demonstrated.
In relation to the other sections contained in div 4 of pt 7, with the exception of s.424A discussed below, no arguments have been advanced that the Tribunal breached any of its obligations under those sections and no such breaches are apparent.
Tribunal did not comply with s.424A of the Act
The ground in the application which is expressed as:
“RRT did not give me a letter to explain doubts”
would appear to be a reference to the Tribunal’s obligation under s.424A(1) of the Act.
At the relevant time the section provided:
(1)Subject to subsection (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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
(bensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.
(2) …
(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 gave for the purpose of the application; or
(c)that is non-disclosable information.
It is true, based on the bundle of relevant documents which is exhibit A, that no section 424A (1) notice was sent to the applicant. However, it is also apparent from the Tribunal’s decision record that the information upon which the Tribunal based its decision was the evidence that the applicant gave at the Tribunal hearing. That information falls within the exception found in s.424A(3)(b) with the result that no s.424A(1) notice was required.
Consequently, no breach of s.424A is disclosed in this regard.
To the extent that the applicant submits that the Tribunal was obliged to disclose its reasoning process to him, authorities such as SZBYR v Minister of Immigration and Citizenship [2007] HCA 26 at [18] demonstrate that “information” for the purpose of s.424A does not include the existence of doubts or inconsistencies or the absence of evidence. Consequently, no breach of s424A is disclosed in this regard either.
Conclusion
Jurisdictional error on part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 12 October 2007
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