SZKPY v Minister for Immigration

Case •

[2007] FMCA 1415

•

25 July 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKPY v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1415
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming decision not to grant protection visa – applicant is a citizen of the People's Republic of China claiming fear of persecution as a Falun Gong practitioner – procedural fairness – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.425 – no reviewable error.

Judiciary Act 1903 (Cth) s.39B

Migration Act 1958 (Cth) ss.422B, 424A, 474
Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1
SZBEL v Minister for Immigration Multicultural & Indigenous Affairs [2006] HCA 63
Applicant: SZKPY
First Respondent: MINISTER FOR IMMIGRATON & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1507 of 2007
Judgment of: Scarlett FM
Hearing date: 23 July 2007
Date of Last Submission: 23 July 2007
Delivered at: Sydney
Delivered on: 25 July 2007

REPRESENTATION

Counsel for the Applicant: Mr Killalea
Counsel for the Respondent: Mr Bevan
Solicitors for the Respondent: Sparke Helmore

ORDERS

  1. The Application is dismissed.

  2. The Applicant to pay the First Respondent's costs fixed in the sum of $4,100.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1507 of 2007

SZKPY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application for review of decision of the Refugee Review Tribunal. The decision was signed on 13th April 2007 and handed down on 3rd May 2007. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa. 

  2. By his application and affidavit, both filed on 11th May 2007, the Applicant commenced proceedings seeking judicial review of the Tribunal's decision. The Applicant has since obtained legal representation and Mr Killalea of counsel appears for him. The Applicant's counsel has now filed in Court by leave an amended application.  In that application the Applicant seeks the following orders: 

    a)A writ of certiorari should issue directed to the Second Respondent, quashing a decision of the Second Respondent dated 13 April 2007 and handed down on 3 May 2007. 

    b)A writ of mandamus issue directed to the Second Respondent requiring the Second Respondent to determine according to law the application for review.

    c)The First Respondent should pay the Applicant's costs. 

Background

  1. The background to this matter is that the Applicant is a citizen of the People’s Republic of China. He arrived in Australia on 12th November 2006 and applied to the Department of Immigration & Citizenship for a Protection (Class XA) visa on 24th November 2006.  The basis of the Applicant's claim for protection is that he is a practitioner of Falun Gong and claims a fear of persecution if he were to return to China. 


    A delegate of the Minister refused the application for a visa on 9th December 2006. 

  2. On 8th January 2007, the Applicant applied to the Refugee Review Tribunal for review of the delegate's decision. The Applicant provided with his application for review a one and a half page statement typed in English, translated by a translation service, setting out details of his claim.  He claimed that he began to practice Falun Gong in 1994 and joined his co-workers in the practice at a factory. He said that his parents were also practising Dafa, but at home, they were not in good health and suffered some illnesses. 

  3. He said that he did not understand the significance of practicing Falun Gong before he started, but his co-workers talked to him about the goodness of Falun Gong and he found that after some time their illnesses disappeared and also his parents' health improved.  He went on to claim that while they studied Dafa they were seriously persecuted and one of his co-workers was apprehended by the police holding a secret meeting in May 1996. 

  4. He claimed that there was a fight between them and the co-worker was beaten to disability by the police and died soon thereafter.  He claimed that in August 1999 his family and other Falun Gong practitioners gathered together to make a trip to Beijing but they were discovered at Changchun Station by the police where they were beaten by the police and he claimed that he was struck on the head and fell to the ground.  He was taken to hospital where he underwent an operation on his skull and it was two weeks before he regained consciousness, he claimed that he could not speak until two months later. He also claimed that a year and a half later he, again, was required to undergo surgery.

  5. The Tribunal wrote to the Applicant and invited him to attend a hearing to take place on 13th March 2007. The Applicant attended and gave evidence with the assistance of an interpreter in the Mandarin language. The Applicant was asked a number of questions by the Tribunal Member about his history and about his practice of Falun Gong.  The Tribunal Member asked him about Falun Gong exercises, which he correctly stated and named, and said the verse commonly expressed before doing an exercise.  He said that he had learned all that before coming to Australia.

  6. The Applicant produced to the Tribunal a photocopy of his passport from the People’s Republic of China. The day after the hearing on 14th March 2007, the Tribunal wrote to the Applicant. This letter was clearly intended to comply with the requirements of s.424A of the Migration Act. The letter was headed ‘Invitation to Comment on Information’ and told the Applicant:

    The Tribunal has information that would, subject to any comments you make be the reason or part of the reason for deciding that you were not entitled to a protection visa.

    The letter then set out the reasons which included:

    You have claimed that the inconsistencies between your written and oral evidence arose from your poor memory, which was caused by a blow to your head in 1999 when a police officer struck you. The Tribunal also notes that, on a protection visa application form, you provided biographical details (such as birth dates, addresses and employment and education history) about yourself and your family members - your ability to recall those details could indicate that you do not have any significant difficulties with your memory. 

    Apart from your own claims, you have submitted no evidence that you have difficulties with your memory which might account for these inconsistencies, and that you sustained an injury in 1999.  (You are welcome to submit documentary evidence on this point)[1]. 

    [1] See Court Book at page 57

  7. The letter included other items of information and invited the Applicant to comment on that information, in writing, in English by 10th April 2007. On 4th April 2007, the Tribunal received a copy of a letter translated into English from the Applicant. That letter referred to the Applicant's claim of an injury and said, inter alia:

    When I was sent to hospital, the doctor was ordered not to issue any medical certificate.  For this reason I am not able to provide any certificate to prove my memory loss due to the brain injury I suffered. [2]

    [2] See Court Book at page 59

  8. The Tribunal handed down its decision on 3rd May 2007.  A copy of the Tribunal decision record can be found at pages 63 through to 79 of the Court Book. The Tribunal referred to the Applicant's claims and his evidence before the Tribunal. It also referred to evidence from other sources and set out a summary of that material on pages 73 through to 76 of the Court Book.  The Independent evidence to which the Tribunal referred included information about the practice or philosophy or religion that is known as Falun Gong. It also referred to the sub provincial city of Changchun city and about incidents which had occurred there.  The material also referred to claims about Falun Gong practitioners having been subjected to arrest, imprisonment, and torture. 

The Tribunal’s Findings and Reasons

  1. The Tribunal's findings and reasons can be found at pages 76 through to 79 of the Court Book.  The Tribunal accepted that the Applicant was a national of the People’s Republic of China, and was satisfied in that finding by the certified photocopy of the passport issued by the People’s Republic of China. The Tribunal noted that the Applicant showed a familiarity with Falun Gong practice but noted that he claimed to have been participating the Falun Gong exercise group in Sydney since his arrival in Australia in November 2006. The Tribunal noted however, the Applicant's claims that the Applicant had been a Falun Gong practitioner in China but described his evidence about his past experiences as:

    internally inconsistent on some important points.[3]

    [3] See Court Book at page 76

  2. The Tribunal was satisfied that at some time in the Applicant's life that he had sustained an injury to his head as the Tribunal Member was able to observe a scar on his head, but noted that the Applicant submitted no medical evidence that he sustained this injury in 1999, nor had he submitted any evidence as to how the injury was sustained, or that the injury had any affect on his memory. The Tribunal went on to assess the Applicant's claim, based on his evidence, and found:

    I have accepted that the applicant has been doing Falun Gong exercise in a practice group in Sydney for the past few months.  However, given that I did not consider truthful his claim that he is a Falun Gong practitioner in China, and am satisfied that his not being a practitioner there was out of choice and not because he feared persecution, I am not satisfied that his involvement with Falun Gong practice in Australia was for any other reason than to strengthen his claim to be a refugee. I have, therefore, disregarded that conduct when considering whether he has a well founded fear of being persecuted in China for a Convention reason.[4]

    [4] See Court Book at page 79

  3. The Tribunal was not satisfied that the Applicant was a Falun Gong practitioner or activist in the People’s Republic of China or that he was regarded as one by the authorities in China and considered the chance remote that he would face Convention related harm if he were to return to China, and found that he did not have a well founded fear of Convention related persecution in the People’s Republic of China.  The Tribunal affirmed the decision not to grant the Applicant protection (Class XA) visa.

Application for Judicial Review

  1. The Applicant's amended application, prepared for him by counsel, contained one ground: 

    The RRT failed to attain, or failed to exercise, jurisdiction by reason that the RRT erred in law by failing to accord procedural fairness, at common law and contra s.424 of the Migration Act 1958, by reason that the RRT stated that it would write to the applicant, post hearing, about a material request put by the applicant, and the RRT did not do so.

    Particulars: 

    The RRT Statement of Reasons and Decision (Court Book 76) 

    The applicant “asked the Tribunal to accept that these inconsistencies were attributable to his poor memory, caused by his injuries at the hands of the police”.

    The transcript ( extract of whole audio record) records:

    T2, Answer 9:

    Applicant:…because I just came here and I have no money so I wonder do you, can you refer me to a doctor,  qualified doctor to assess my medical problems that is free of charge?

    …

    T3, Qu 13: 

    RRT: … If you’ve told the truth about all these things then I'm probably going to that you're a refugee. And the reasons you’ve given me for not saying all those things originally to the Immigration Department was that you had problems with your memory. The question is whether I believe that and at the moment there is no medical evidence to show that that is true. Right, so you understand what I am saying?

    T3, Answer 13:

    App:  Understand. The next step I would like to have my head injury assessed by a qualified doctor in Australia.

    T3, Qu 14: 

    RRT:  Okay.  Well, I will write to you about that, OK.  

    The RRT did not write to the Applicant about being assessed by a qualified doctor. Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1 [103].

  2. That then is the Applicant's amended application.  It is supported by an affidavit of Mai Troung, affirmed on 23rd July 2007.  The deponent to the affidavit is Ms Troung, a solicitor, who deposed that she had listened to an audio tape and a copy of the audio tape is annexed, marked with the letter A, and she deposed that she had checked a purported transcript of that tape against the audio recording and the transcript was accurate.  A copy of the transcript is also annexed to the affidavit.  

  3. The point that the counsel for the Applicant wishes to make is that the Tribunal Member said to the Applicant, "I will write to you about that." The Applicant complains that the Tribunal did not write to him about that very point. This then is claimed as a breach of s.425 of the Migration Act and the decision of the High Court of Australia in SZBEL v Minister for Immigration Multicultural & Indigenous Affairs [2006] HCA 63 applies.

  4. The claim is that the Tribunal did not afford the Applicant procedural fairness. The Applicant also relies on Re Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6. At [103], McHugh, Gummow JJ said:

    In the present case the ultimate issues are (a) whether, by failing, as the applicant puts it, to carry through something which an officer of the decision-maker said would be done before reaching a decision, there was a failure to observe an expectation reasonably attributable to the applicant and (b) if so, whether that failure gave rise to a decision flawed for denial of natural justice.

    Their Honours went on to say at [105]:

    But the failure to meet that expectation does not reasonably found a case of denial of natural justice. The notion of legitimate expectation serves only to focus attention on the content of the requirement of natural justice in this particular case. The ends sought to be attained by the requirement of natural justice may be variously identified. But at least in a case such as this the concern is with the fairness of the procedure adopted rather than the fairness of the outcome. It is with the decision-making process not the decision, as Lord Brightman put it. What is delivered by the requirement of natural justice is the right to a hearing, a technical expression in law, before action is taken.

  5. I would comment that s.422B of the Migration Act was not in force at the time the High Court handed down its decision in Re Minister for Immigration & Multicultural Affairs; Ex parte Lam. In this matter, s.422B of the Act does apply. Section 422B of course provides that division, headed – ‘Conduct of Review’, is taken to be an exhaustive statement of the requirements of the natural justice hearing Rule in relation to the matters it deals with.

  6. Section 422B, as I said, definitely applies in this case. The decision of the High Court of Australia in SZBEL certainly does apply.  It is well established that what is required by procedural fairness is a fair hearing of a fair outcome. Their Honours went on to say in [25]:

    It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes, not its actual decision.

    Their Honours also said at [26]:

    It has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires.

  7. The Tribunal did write to the Applicant.  The Tribunal wrote to the Applicant in the letter of 14th March, which was written to comply with s.424A of the Migration Act. At page 57 in the passages that I quoted the Tribunal brought to the Applicant's attention the inconsistencies between his written and oral evidence, and his claims that he had a poor memory which was caused by a blow to the head. It went on to point out that the Applicant had submitted no evidence that he had difficulties with his memory or that he sustained an injury in 1999 and went on to say – “You are welcome to submit documentary evidence on this point”.

  8. The Applicant, whilst replying, did not submit documentary evidence but indicated that he was unable to provide a certificate to prove his memory loss. In my view, the Applicant was granted procedural fairness.  The Tribunal did what the Tribunal Member said the Tribunal was going to do.  There was no undertaking by the Tribunal that it would have the Applicant's head injury assessed by a qualified doctor in Australia which was what the Applicant asked. 

  9. All the Tribunal offered to do was write to the Applicant about his claim of memory loss brought about by head injury and the lack of medical evidence. That is what the Tribunal did. In my view, there is no failure to accord procedural fairness and the Tribunal did comply with s.425 of the Migration Act. The Tribunal invited the Applicant to attend the hearing and he attended that hearing and gave evidence with the assistance of an interpreter.

  10. The Tribunal put to the Applicant the point about his claim that a loss of memory was brought about by an injury to his head and the Tribunal put to the Applicant its concerns that he provided no medical evidence on that point. The Tribunal wrote to the Applicant in a letter under the provisions of s.424A of the Migration Act offering - setting out its concerns, seeking the Applicant's comments and inviting the Applicant to submit documentary evidence in support of his claim. The Applicant did provide comments in writing, but did not provide any documentary medical evidence. There is no breach of procedural fairness.

  11. The ground also claimed that the Tribunal failed to accord procedural fairness at common law. That claim is met by s.424B of the Migration Act. Section 422B sets out that in Div.4 of that part of the Act with an exhaustive statement of the natural justice hearing rule, and it is well established that natural justice of common law is, therefore, excluded.

  12. In any event I am not satisfied that the Applicant has demonstrated a denial of natural justice at common law. There will certainly be no obligation placed on the Tribunal to undertake its own inquiries and s.427 gives the Tribunal power to make inquiries but it is discretionary and no obligation arose.  The ground must fail. 

  13. There are no other grounds argued and, in my view, the Applicant has not demonstrated jurisdictional error. It must follow that the Tribunal decision is privative clause decision as defined by s.474 of the Migration Act. Consequently, it is not subject to the orders of the nature of certiorari or mandamus that the Applicant seeks. It follows then that the application will be dismissed and it will be dismissed with costs.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  17 August 2007


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