SZKQY v Minister for Immigration
[2007] FMCA 1444
•13 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKQY v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1444 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of a decision of the Refugee Review Tribunal affirming a decision of the delegate of the Minister not to grant a protection visa to the Applicant – Applicant a citizen the People's Republic of China claiming fear of persecution – credibility no evidence of bias – no failure to comply with Migration Act 1958 (Cth) ss.424A or 425 – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 425, 474 |
| SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 followed SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 Minister for Immigration & Multicultural Affairs v SGLB (2004) 207 ALR 12 |
| Applicant: | SZKQY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1585 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 13 August 2007 |
| Date of Last Submission: | 13 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 August 2007 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms Francois |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $5,000.00.
I allow three (3) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1585 of 2007
| SZKQY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 16th April and handed the decision down on 24th April 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 filed an application and an affidavit in support on 21st May 2007. In the application he seeks:
i)A declaration that the decision was invalid and contrary to law.
ii)An order that the Tribunal decision 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 the law.
iv)An order that the Respondent pay the costs of this application.
Two of the orders which the Applicant seeks are problematic. First, if the Court is satisfied that an order in the nature of mandamus should be made remitting the proceedings to the Refugee Review Tribunal, it is inappropriate for the Court to order that the Tribunal should be differently constituted. I am not satisfied that the Federal Magistrates Court has any power to make orders in respect of the constitution of a particular Refugee Review Tribunal. That would appear to be a matter for the Principal Member of the Tribunal (SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107).
Second, the Applicant seeks a costs order. He is not legally represented in these proceedings, although he has had the benefit of a referral to a lawyer on the Refugee Review Tribunal Legal Advice Panel. I would comment, however, that neither his application nor his submissions bear any evidence that they have been prepared by anyone legally qualified. I also note from the Applicant's application that the filing fee for the application was waived. As the Applicant is not legally represented, and appears not to have had to pay any fees, it is difficult to see why he has any grounds for an order for costs.
Background
The background of this matter is that the Applicant is a citizen of the People's Republic of China. He arrived in Australia on 19th November 2006, and applied for a Protection (Class XA) visa on 29th December 2006. His application for a visa was refused on 3rd February 2007.
On 5th March in that year the Applicant applied to the Refugee Review Tribunal for a review of the delegate's decision.
The application was not accompanied by any other documentary evidence. The Tribunal wrote to the Applicant on 13th March 2007, and invited him to attend the hearing on 10th April. On 15th March the Tribunal again wrote to the Applicant care of his migration agent with a letter headed “Invitation to Comment on Information”. The letter told the Applicant that the Tribunal had information that would, subject to any comments that he made, be the reason or part of the reason for deciding that he was not entitled to a protection visa.
The letter then set out five bullet points relating to information in the form of a chronology. The letter told the Applicant that the information was relevant as it may indicate that he did not have a fear of persecution for a Convention reason while in China or after arriving in Australia. The letter also told the Applicant that that information may cause the Tribunal to question his credibility and the authenticity of his claims. The Tribunal invited him to comment on this information in writing and in English by 29th March 2007.
The Applicant, through his migration agent, did provide comments in reply to the Tribunal s.424A letter. The Tribunal received a letter on
29th March 2007 from the Applicant's migration agent enclosing a
two-page letter from the Applicant, typed in English. That letter replied to the matters in the Tribunal s.424A letter, and was signed in Chinese characters by the Applicant. At the hearing the Applicant identified his signature on the copy of the letter at pages 71 and 72 of the Court Book.
The Applicant attended the hearing and provided his Chinese passport and identity card for perusal by the Tribunal. He gave evidence and was asked a number of questions about his claim that he had been employed as a truck driver and came under adverse notice after preparing a petition to the Fujian Provincial Government requesting the government to investigate the corrupt police, to clean up corruption in the police and to set up a normal administrative system, and to respect and protect basic human rights of self-employed truck drivers.
The Tribunal noted that the Applicant confirmed his statement outlining his claims. The Tribunal asked the Applicant why he feared persecution if he were to return to China. The Tribunal noted that the Applicant said that if he did return to China he would be arrested by the Chinese government because in the past he faced extortion by the traffic police and wrote a petition which was regarded as anti-government. The Tribunal asked the Applicant to talk about the petition. The Applicant provided more details. The Tribunal asked the Applicant a number of questions about his dealings with corrupt officials, about having been arrested and detained.
The Tribunal asked the Applicant questions about his history generally, and how he obtained the false passport. The Tribunal asked the Applicant as to whether an arrest warrant had been issued against him, and pointed out to a statement he made in his written statement that the police had visited his home after he arrived in Australia with an arrest permit. The Tribunal invited the Applicant to comment on country information, which suggested that the government in China was taking steps to eradicate corruption. The Applicant said that the law was established by the government in Beijing but in local areas the policy may not be applied.
The Tribunal handed down its decision on 24th April 2007. A copy of the decision record can be found at pages 93 through to 110 of the Court Book. In the decision the Tribunal refers to the Applicant's claims and evidence in some details, and it refers to Independent country evidence about China and about corruption.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons can be found in the Court Book at pages 106 through to 110. The Tribunal accepted that the Applicant was a national of China, based on his ID card rather than on his passport which he claims was not issued in his name. The Tribunal went on to make this finding, however:
The Tribunal found the applicant not to be a credible witness with respect to some of his claims. Many of the applicant's claims were vague and general and on several occasions the applicant was evasive in responding to Tribunal's questions. The applicant was unable to state the dates when various events occurred, and he changed his oral evidence with respect to the issuing of warrants for the 2005 detention and also following his arrival in Australia. When the Tribunal pointed out the inconsistencies to the applicant, the applicant stated that he may have misunderstood the questions. The Tribunal does not accept this explanation as in many other respects the applicant's evidence appeared forthright and truthful. The Tribunal is not satisfied that the applicant had been truthful with respect of all of his evidence to the Tribunal.[1]
[1] See Court Book at page 106
The Tribunal then went on to consider the individual parts of the Applicant's claim. The Tribunal made certain findings which I will read onto the record because the Applicant challenges those findings and claims that they constitute a breach of s.424A of the Migration Act:
The Tribunal has considered the applicant's claims that he was a self-employed truck driver and that he was requested to pay bribes to corrupt traffic police when transporting goods. The Tribunal accepts this claim… The applicant did not suggest any element of discrimination on the part of the traffic officials in seeking payments from him. Further, the Tribunal considers that a payment of a bribe does not constitute serious harm within the mean of s.91R of the Act.
The Tribunal went on to consider the Applicant's claim about coming under adverse notice for attempting to expose corruption, and it acknowledged that in certain circumstances exposing corruption may fall within the description of political opinion. In this case, however, the Tribunal formed a different view, saying:
The Tribunal is of the view that the applicant expressed his opposition to the corruption of the traffic officials was a complaint about loss of income and not about the political system.[2]
[2] See Court Book at page 107
The Tribunal also did not accept the Applicant's claim that he was one of the organisers of a sit in protest and was detained because of his role in that protest. The Tribunal then set out the reasons why it did not accept that claim. One of the reasons included the Applicant's claim about a warrant for his arrest. The Tribunal said:
The Tribunal finds it significant that the applicant had taken no steps in obtaining the warrants from his family throughout the processing of his application despite such documents being available and the applicant willing to provide them.
The Tribunal considered the Applicant's claim that he would face persecution because he wrote to the central government and rejected it, and noted the Applicant's claims about human rights violations in China, and dealt with that issue by saying:
The Tribunal is of the view that the issue before it is whether there is a real chance that the applicant will face persecution for a Convention reason and this is the issue considered by the Tribunal. Human rights violations per se do not give rise to the existence of such a chance.[3]
[3] See Court Book at page 108
The Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations, and affirmed the decision not to grant the Applicant Protection (Class XA) visa.
Application for Judicial Review
In his application and in his submissions which were filed on
2nd August the Applicant claims that the Tribunal fell into these jurisdictional errors:
i)That the Tribunal failed to comply with its obligations under s.424A(1) of the Migration Act.
ii)That the Tribunal failed to consider important independent country information in assessing his claims.
iii)That the Tribunal failed to comply with its obligations under s.425 of the Migration Act, and
iv)The Applicant makes a claim of what appears to be bad faith on the part of the Tribunal.
Turning first of all to the Applicant's claims of a failure to comply with s.424A(1) of the Migration Act. The Applicant has quoted sub‑s.424A(3) and 424A(1), and then set out various statements which the Applicant claims constitute a breach of s.424A(1) and are not covered by the exception in s.424A(3). Those passages are:
a)The Tribunal's finding that the Applicant expressed his opposition to the corruption of the traffic officials was a complaint about loss of income and not about the political system.
b)
That the Tribunal came to the conclusion that a payment of a bribe does not constitute serious harm within the meaning of
s.91R of the Act.
c)That the Tribunal concluded that the Applicant had taken no steps in obtaining warrants from his family throughout the processing of his application, despite such documents being available and the applicant willing to provide them.
The Applicant also, despite indicating that he wished to rely on his written material, made an oral submission to the Court. This, of course, is perfectly permissible and indeed is to be encouraged. The Applicant reiterated his claim of a breach of s.424A of the Migration Act, and claimed that the Tribunal had relied on certain information that it had not put to him for comment as required under sub‑s.424A(1), and not fall under any of the exceptions in sub-s.3.
The Applicant initially denied having received a s.424A letter from the Tribunal and in fact denied having replied to that letter until he was shown copies of the documents and identified his signature on the letter in reply. He then told the Court that he must have forgotten about that letter.
The Applicant was asked to indicate what particular piece of information he claimed had been relied on by the Tribunal as a reason for affirming the delegate's decision that had not been put to him for comment and did not fall within one of the exceptions in sub‑section 424A(3). I questioned the applicant on that particular point in an effort to persuade him to particularise that crucial piece of information over a period of about 15 minutes. The Applicant responded by restating the question, paraphrasing parts of s.424A and eventually saying that his friend had prepared the application and that is all he could say. I formed the view that the Applicant was evading answering the question.
It is important to look at s.424A of the Migration Act and to make clear what it does and what it does not do. In this application the drafter of the application document and the submissions - and I am satisfied that that is not the Applicant but one of the Applicant's friends - has formed the view that s.424A of the Migration Act is some sort of a catch all for any claim that an applicant wishes to make about any part of the Tribunal decision that he or she does not like. That is not what s.424A is all about. Applicants do not do themselves any good whatsoever in reciting s.424A of the Migration Act as some sort of a mantra in the hope that it will bring upon them a favourable outcome.
In both the application and the Applicant's submissions, it is claimed that the information which the Applicant challenges is not covered by the exceptions in sub-s.424A(3) of the Act. On its face that is correct, because the three passages referred to by the Applicant in the application and his submissions are not information at all. They are the Tribunal's conclusions at which the Tribunal has arrived after considering:
i)Information given by the Applicant to the Tribunal for the purpose of the application, and
ii)Independent country information.
Both of those matters are, of course, covered by the exceptions in
sub-s.424A(3). What sub-s.(3) says is this:
(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
(c) that is non‑disclosable information.
That sub-sections are quoted both in the Applicant's application and his submissions and for no apparent reason in para.(c) the words: ‘non-disclosable information’ are underlined. I can only speculate as to whether the underlining is a means of indicating that that information has some sort of significance. In this case it has none whatsoever.
Non-disclosable information is defined in s.5 of the Migration Act. The section defines non-disclosable information in this way:
“Non-disclosable information” means information or matter:
(a) whose disclosure would, in the Minister's opinion, be contrary to the national interest because it would:
(i) prejudice the security, defence or international relations of Australia; or
(ii) involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet; or
(b) whose disclosure would, in the Minister's opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings; or
(c) whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence;
and includes any document containing, or any record of, such information or matter.
It can be seen, then, that a decision by the Refugee Review Tribunal which involves non-disclosable information as defined by s.5 of the Migration Act and as referred to by sub-s.424A(3)(c) of the Migration Act, will be a very rare case indeed. There is no non-disclosable information in this case. For that matter, there is no breach of s.424A of the Migration Act. The reference to s.424A in the Applicant's documents is entirely misconceived.
The Applicant claims that the Tribunal was actually biased and therefore did not give the Applicant a hearing required by s.425 of the Act. This is, of course, an allegation of bad faith and it should be strictly alleged and strictly proved. It is well established that it is a rare and extreme circumstance that a lack of good faith on the part of the administrative decision-maker will be apparent by reference only to the reasons for the Tribunal decision. (See SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 at [16]; SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [44]).
There is no evidence of bad faith, bias either actual or apprehended. None at all.
As to the claim that there is a breach of s.425, where it is alleged the Tribunal failed to provide the Applicant with a genuine opportunity to give oral evidence and to present arguments in support of his claims, leaving aside the bias allegation, which is, to my mind, completely discredited, the Applicant has not pointed to anything which would indicate a breach of s.425 of the Act. He was invited to attend the hearing, he attended the hearing and gave evidence. The Tribunal raised certain issues with him before the hearing in a s.424A letter, and gave him the opportunity to comment on them. He did so comment. Those matters were taken into consideration by the Tribunal in its reasons.
The doubts about the Applicant's role in exposing corruption, and as to whether or not it would have led to his persecution by the authorities were matters that were central to the delegate's decision. The Applicant can hardly claim to have been taken by surprise when these matters formed a large part of the Tribunal decision. There is no lack of procedural fairness of the type referred to by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63.
As to the claim that the Tribunal did not consider some Independent country information, it is submitted by counsel for the Respondent,
Ms Francois, that this is not an error at all but an attempt by the Applicant to adduce fresh evidence in support of his claims. I am of a belief that this submission is correct. As counsel said, the information cited by the Applicant in his submissions, which is not yet in any admissible form before the Court, suggests that some petitioners in China may face persecution.
The Tribunal had invited the Applicant at the hearing to comment upon its understanding that Independent country information demonstrated that the government was taking steps to eradicate corruption in China, and informed the Applicant that he could provide additional material to the Tribunal at any time until the Tribunal handed down its decision. The Tribunal said:
The Tribunal pointed out that the applicant had ample opportunity to provide any documents which he wished the decision-maker to consider during the processing of his application by the Department and the Tribunal. The Tribunal informed the applicant that he could provide any additional material until the handing down of the Tribunal's decision.[4]
[4] See Court Book at page 104
The Applicant did not provide any material to the Tribunal. The Applicant seems to be of the view that the Tribunal was under some obligation to conduct its own inquiries to find evidence in support of his claim. That is not an obligation on the Tribunal. (See Minister for Immigration & Multicultural Affairs v SGLB (2004) 207 ALR 12).
The Tribunal did not find the Applicant to be a credible witness on key parts of his case. Credibility is a factual finding and provided that there is evidence upon which such a finding can be made, those matters are entirely within the domain of the decision-maker. In my view there was ample evidence before the Tribunal including the Applicant's evidence to the Tribunal and the Tribunal's view of the Applicant's answers to the Tribunal's questions that would allow the Tribunal to make such a factual finding.
The Applicant has not shown any jurisdictional error. He is not legally represented. In my reading of the Tribunal decision it does not indicate any arguable case of any jurisdictional error, whether the Applicant has mentioned it or not. In the absence of jurisdictional error the Tribunal decision is a privative clause decision under s.474 of the Migration Act. Privative clause decisions are final and conclusive and are not subject to orders in the nature of certiorari or mandamus. It follows that the application will be dismissed.
There is an application for costs on behalf of the First Respondent Minister. Costs follow the event and the amount of $5,000.00 is an appropriate figure, as it is within the amount envisaged by the Rules. The Applicant says that he is not working and therefore does not have the money to meet those costs. That may well be true. I will allow three months to pay.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 22 August 2007
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