SZKRK v Minister for Immigration
[2007] FMCA 1384
•6 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKRK v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1384 |
| 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 – credibility – allegation of bias – no evidence of bias – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 425, 474 |
| SBBF v Minister for Immigration, Multicultural & Indigenous Affairs, [2002] FCAFC 358 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs, [2002] FCAFC 361 |
| Applicant: | SZKRK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1628 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 6 August 2007 |
| Date of Last Submission: | 6 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 6 August 2007 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Mr O'Brien |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $2,750.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1628 of 2007
| SZKRK |
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 decision was signed on 16th April 2007 and handed down on 26th April. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a protection visa.
The Applicant seeks judicial review of that decision. He seeks a declaration that the decision was invalid, and contrary to law. He seeks an order quashing or setting aside the Tribunal decision. He refers to decisions in the plural: ‘decisions and each of them’ - but there is only one decision. He seeks an order that his application be remitted to a differently constituted Refugee Review Tribunal to be determined in accordance with the law.
I am not of the view that this Court has the power to make an order as to the constitution of the Refugee Review Tribunal. The Full Court of the Federal Court has expressed doubts that this Court has the power to do so, and in my view the constitution of a Tribunal for the purpose of determination is a matter for the Principal Member of the Refugee Review Tribunal.
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 28th June 2006. On 9th August 2006 he applied for a Protection (Class XA) visa. That application was refused on 30th October 2006. On 30th November 2006 he applied to the Refugee Review Tribunal for a review of the delegate's decision.
The Applicant submitted his application with the assistance of a migration agent. No further documentation as submitted to the Tribunal with the application. The Tribunal wrote to the Applicant on
20th December 2006 advising him that it had considered the material before it in relation to his application but was unable to make a decision in his favour based on that information alone.
The Tribunal invited the Applicant to attend a hearing to give evidence and present arguments in support of his claims. The Applicant attended the hearing, which was on 12th February 2007, and gave evidence with the assistance of an interpreter in the Mandarin language. He described how he had worked as a painter and worked for a man who invited him to join his construction team. His employer entered into a contract with the Nanchang City No.1 Construction Engineering Corporation (‘Nanchang Construction’).The Applicant and other painters commenced work but they were not paid.
The Applicant and his colleagues tried to obtain payment but the employer told them that the Nanchang Construction Engineering Corporation had not paid him. Eventually the Applicant said that he organised all 30 people in the painting team to go to Nanchang again, where they engaged in a demonstration. He and two others were arrested by the police and sent to a detention centre. He said that he was detained from May 2005 until March 2006. He claimed to have been badly treated and said that one of his friends had died. Eventually he was released but was later detained. He said that he escaped from detention with some other detainees. He then left China for Australia. The Applicant was asked a considerable number of questions by the Tribunal Member.
After the hearing on 12th March 2007 the Tribunal wrote to the Applicant care of his migration agent. A copy of that letter can be found at pages 109 through to 112 of the Court Book. The letter was headed ‘Information to Comment on Information’ and began by saying this:
At the Tribunal hearing held on 12 February 2007, you were given information that would, subject to any comments you make, be the reason or part of the reason for deciding that you are not entitled to a protection visa.
The information that you were given was that there were a number of discrepancies between what you wrote in your statutory declaration and what you said at the hearing. Furthermore, there is external evidence that may conflict with your account of events.[1]
[1] See Court Book at page 109
The letter sets out a number of items of information including a reference to Independent country information and refers in detail to the Applicant's dealings with the Nanchang Construction. The letter also refers to parts of the Applicant’s evidence to the Tribunal. The Tribunal set out why it believed the information was relevant, and why the information, if not replied to, would be detrimental to the Applicant's claim.
The Applicant's migration agent forwarded a reply to the Tribunal on
26th March 2007. The Applicant's reply was a three-page letter in which the Applicant made comments on the claims contained in the Tribunal's letter. The Tribunal handed down its decision on 26th April 2007. A copy of the decision record can be found in the Court Book at pages 123 to 140.
The Tribunal accepted that the Applicant was a citizen of the People's Republic of China and assessed his claims against China. The Tribunal relied on documentation supplied by the Applicant in order to make that finding. The Tribunal considered the Applicant's evidence to the Tribunal and the comments made in the Applicant's reply to the letter forwarded to the Applicant on 12th March 2007. The Tribunal found the Applicant's evidence to be implausible and inconsistent. The Tribunal rejected the Applicant's claims and found that he was not a witness of truth. The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason, and affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
In his amended application the Applicant sets out three grounds for relief. First, that the Tribunal ignored or failed to consider a claim that he made to it, or the Tribunal ignored relevant material which was before it, or that the Tribunal misunderstood his claim or made a mistake in relation to an important finding of fact. The information to which the Applicant refers is the information contained in the Applicant's comments in reply to the Tribunal's letter of 12th March 2007.
The second ground is that the Tribunal failed to comply with its obligations under sub-s.424A(1) of the Migration Act. The Applicant provided particulars of that, his claim that the Tribunal considered independent evidence in relation to the No.1 Construction Company, and submitted that it is obvious that the independent evidence is not information excluded by the operation of sub-s.424A(3) of the Migration Act. The Applicant also claimed the Tribunal failed to consider his claims honestly and fairly. He said, quote:
Unfortunately, in my case, the Tribunal failed to do so, which makes me believe that the Tribunal has NEVER ever intended to comply with, honestly and fairly, its obligation under s.424A(1) of the Act.
I take that to be an allegation of bias, or bad faith.
The third ground is that the Tribunal failed to comply with its obligation under s.425 of the Migration Act. The substance of his claim is this: (set out in sub-paras.c) and d) of the particulars to ground (3) quote:
c) In my case, on or about 26 March 2007, I provided further materials, which should be regarded as "new" materials that were not provided to the Tribunal BEFORE the Tribunal's hearing but AFTER the hearing. It means that the Tribunal, before it, had new materials, but the Tribunal still did not decide the review in my favour on the basis of the “new” materials.
d) If it is the case, subject to s.425 of the Act, I believe that the Tribunal must invite me to appear before the Tribunal again, even if it had done it previously, because there are “new” materials before the Tribunal.
The Applicant made oral submissions to the Tribunal in which he sought to tender evidence by way of photographs and offered to show to the Court scars from injuries which he said were inflicted upon him. I indicated to him that the Court was not in a position to take fresh evidence on matters of fact. The Applicant takes exception to the fact that the Tribunal disbelieves his evidence.
Mr O'Brien, solicitor for the Minister, pointed out that there was nothing in the Tribunal decision or in the Court Book that indicated that the Applicant had ever attempted to provide these photographs to the Tribunal for its consideration.
The Applicant's grounds are misconceived. As to the first ground, alleging that the Tribunal ignored or failed to consider the important evidence submitted after the hearing, the Tribunal did in fact consider that material. A summary of the material can be found in the Court Book at pages 136 and 137. The Tribunal did not ignore or fail to consider that claim, the Tribunal did consider it.
As to the Applicant's claim that the Tribunal failed to comply with its obligation under sub-s.424A(1) of the Migration Act, it is certainly not obvious that the Independent country information about the Nanchang No.1 Construction Company to which the Tribunal referred was not information covered by the exception in sub-s.424A(3) of the Act, it would appear to me to come under sub-s.424A(3)(a).
In any event, all of that material was put to the Applicant after the hearing in its letter to the Applicant of 12th March 2007. The Applicant claimed that the Tribunal failed to provide him with particulars of the information and failed honestly and fairly to invite him to comment on that information. That is just wrong. The Tribunal put that information to him in a letter that in my view complied with s.424A of the Migration Act, and the Applicant did comment on it in writing.
As to the claim of bias that appears in para.2(e), or bad faith alleging the Tribunal never ever intended to comply honestly and fairly with its obligation under s.424A(1) of the Act, there is no evidence of that whatsoever. It is well established that allegations of bias or bad faith are serious allegations which must be strictly alleged and strictly proved. It is a rare and extreme case that evidence of bias will be found, or bad faith will be found, when all that the Applicant relies upon is the Tribunal's written reasons for decision. (See SBBF v Minister for Immigration, Multicultural & Indigenous Affairs, [2002] FCAFC 358 at [16], and SBBS v Minister for Immigration & Multicultural & Indigenous Affairs, [2002] FCAFC 361 at [43] and [44]).
The Applicant claims that the Tribunal failed to comply with its obligations under s.425 of the Migration Act. The Tribunal wrote to the Applicant and invited him to attend the hearing, which he attended. The Applicant claims that the Tribunal, after he had replied to the
s.424A letter, should have invited him back to another hearing. There is no obligation to do that under s.425 of the Migration Act. There is no indication that the Applicant was taken by surprise by any of the Tribunal's findings.
The Tribunal's s.424A letter of 12th March made it quite clear that the Applicant's case was regarded as implausible and inconsistent by the Tribunal. The fact is that the Tribunal did not believe the Applicant's evidence, and did not find him a credible witness. Credibility is a matter for the administrative decision-maker who conducts the hearing. So long as there is evidence upon which such a finding can be made there is no place for the Court to interfere on judicial review.
The Applicant is not legally represented. I am unable, on my reading of the decision and supporting materials, to identify any other arguable grounds of review. The grounds raised by the Applicant are not made out, and I am satisfied that there is no jurisdictional error. The Tribunal is a privative clause decision as defined by sub-s.474(2) of the Migration Act. Accordingly, it is final and conclusive and not subject to declaration or orders in the nature of certiorari or mandamus that the Applicant claims. The application will be dismissed.
There is an application for costs on behalf of the First Respondent Minister. The Applicant has been unsuccessful in his claim, and this is an appropriate matter for a costs order in favour of the First Respondent. The amount claimed is $2,750.00, which is well within the scale of costs envisaged by the Federal Magistrates Court Rules.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 15 August 2007
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