SZKRR v Minister for Immigration
[2007] FMCA 1709
•2 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKRR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1709 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – applicant is a citizen of China claiming fear of persecution on grounds of political opinion – credibility – allegation of bias – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A,474 |
| SZEPZ v Minister for Immigration & Multicultural Affairs [2007] FCA 107 followed. SZCOQ v Minister for Immigration & Multicultural Affairs [2007] FCAFC 9 referred to. SZILP v Minister for Immigration & Citizenship & Anor [2007] FMCA 592 distinguished. WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 referred to. MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 referred to. Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8 referred to. NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 76 referred to. Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) 205 CLR 507 followed. SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 followed. |
| Applicant: | SZKRR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1665 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 2 October 2007 |
| Date of last submission: | 2 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 2 October 2007 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms Sirtes |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs in the sum of $4,700.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1665 of 2007
| SZKRR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of the People's Republic of China. She asks the Court to set aside a decision of the Refugee Review Tribunal refusing her a protection visa. She also asks the Court for a declaration that the decision was invalid and contrary to law and she asks the Court that her application for a visa be sent back to a differently constituted Refugee Review Tribunal to be determined in accordance with law.
I have explained to the Applicant that in order to make those orders the Court must be satisfied that the Tribunal decision is affected by jurisdictional error. I am also of the view that even if the Court does make an order sending her application back to the Tribunal the Court has no power to direct that the Tribunal be differently constituted. That is a task for the Principal Member of the Tribunal under s.420 of the Migration Act (see SZEPZ v Minister for Immigration & Multicultural Affairs[1]).
[1] [2007] FCA 107
Background
The background to this matter is that the Applicant arrived in Australia and 3rd September 2006 and applied for a Protection (Class XA) visa on 17th October 2006. She claimed that she feared persecution as a result of circumstances that arose out of a motorcycle accident in which her husband was seriously injured. She claimed that her husband was disabled and the accident was caused by the negligence of the engineering team of the Fuqing Municipal Government. She became very active in pursuing a claim for compensation to such an extent that she attracted the adverse attention of the authorities.
The Applicant claimed that she was charged and convicted with the offence of disturbing the social peace. She claimed to have gone into hiding from the authorities and eventually was obliged to leave China. She claims to fear persecution because the authorities considered her a trouble maker and her claims were based on the grounds of political opinion and membership of a particular social group.
A delegate of the Minister refused her application for a visa on 18th December 2006.
Application for Review by the Refugee Review Tribunal
On 16th January 2007 the Applicant applied to the Refugee Review Tribunal for a review of the delegate's decision. She did not provide any additional information to the Tribunal at that stage. The Tribunal wrote to the Applicant and invited her to attend a hearing on 15th March 2007. The Applicant brought with her an identity card, although did not provide her passport at that stage. The Applicant gave evidence at the hearing about the circumstances of her husband's accident and about her history.
The Tribunal wrote to the Applicant after the hearing on 4th April 2007. That letter was headed "Invitation to Comment on Information" and was written to comply with the requirements of s.424A of the Migration Act. The letter told the Applicant that the Tribunal had information that would, subject to any comments she made, be the reason or part of the reason for deciding she was not entitled to a protection visa. The letter set out that information which included Independent country information about the prevalence of document fraud in China and told the Applicant that that information was relevant because it may affect the weight the Tribunal gives to a medical certificate dated 5th May 2004 that the Applicant had submitted as part of her original application.
The Tribunal also referred to the Applicant's claims about the accident suffered by her husband, about the medical certificate, the Applicant's residential history and the Applicant's claims about her arrest. The Tribunal also referred to the Applicant's claim to have been detained and statements she made at the hearing. The information also referred to discrepancies between the claims made in the application and the Applicant's evidence at the hearing. The Tribunal told the Applicant in the letter why the information was relevant and pointed out in particular that it may well go towards raising concerns about her credibility.
The letter asked the Applicant to comment in writing by 18th April 2007. On that date the Applicant's migration agent provided a statutory declaration by the Applicant relating to the medical certificate from the Fuqing City Rong Qiang Hospital relating to the husband's injuries and accident.
The Tribunal then wrote to the Applicant on 20th April indicating that the decision would be handed down on 12th May. The Tribunal also received a letter from the Applicant's migration agent on 27th April 2007 providing further documents, including:
·a statutory declaration;
·certified copies of Sickness Diagnosis Certificates from the hospital dated 10th May and 12th August 2004;
·certified copies of records of Medical Treatment from the hospital;
·copy of an envelope showing that the documents had been recently forwarded from China.
Those documents were accompanied by translation from Chinese into English. The Tribunal again wrote to the Applicant by fax indicating that the Member reviewing the Applicant's case had considered the material of 27th April.
The Tribunal handed down its decision on 1st May 2007, that decision having been signed on 30th April 2007. A copy of the Tribunal decision record can be found at pages 115 through to 135 of the Court Book. The Tribunal decision record sets out a summary of the Applicant's claims and evidence, including the Applicant's evidence at the hearing, and refers to the Tribunal's s.424A letter of 4th April 2007 and the Applicant's replies on 18 April and 27 April 2007. The decision also refers to pieces of Independent country information about document fraud that were referred to in the Tribunal's letter to the Applicant of 4th April 2007.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons are set out on page 130 to 135 of the Court Book. The Tribunal accepted that the Applicant had Chinese nationality and assessed her claims against that country, noting the Applicant's claims of Chinese nationality and citizenship and production of Chinese identity documents.
The Tribunal discussed the Applicant's claim that she entered Australia on a false passport and despite some doubts accepted that that was the case. The Tribunal then went on to note that the Applicant claimed to fear persecution in China because she was considered a troublemaker by the Chinese authorities after her relentless pursuit of compensation for her husband following his serious accident.
The Tribunal noted that the Applicant's claims were based on a Convention ground of political opinion and membership of a particular social group.[2] The Tribunal then set out its views on the Applicant's claim of the accident that occurred to her husband on the medical certificate that was dated 5th May 2004, the Applicant's evidence at the hearing and the Applicant's passport.
[2] See Court Book at page 131
The Tribunal expressed considerable doubts about the veracity of the medical certificate which was dated 5th May 2004. The Tribunal noted the Independent country information about the high level of document fraud in China, but also noted a major discrepancy between the date of the document and the date of the Applicant husband's claimed accident. The Tribunal noted that they were the same date, 5th May 2004, and had this to say:
The medical certificate dated 5 May 2004 described how Xie Xin Ai had an accident, was in a week-long coma, spent more than 3 months in hospital, and in the end suffered paralysis. However, the applicant has consistently claimed that the accident occurred on 5 May 2004. The medical certificate which discussed a long period of hospitalisation could not have been prepared on 5 May 2004.[3]
[3] See Court Book at page 132
The Tribunal then discussed the Applicant's evidence at the hearing and referred in particular to contradictory claims and inconsistencies. The Tribunal then set out on pages 132 to 134 those contradictions and inconsistencies and pointed out that they raised strong concerns about her credibility. The Tribunal did not accept that the Applicant's husband had had an accident or treatment and did not accept that she sought compensation from the authorities or that she had gained a political or imputed political profile or was of any interest to the authorities. The Tribunal did not accept that a warrant had been issued for the Applicant's arrest or that the authorities were still seeking her.
The Tribunal found that the Applicant had fabricated her claims. It was not satisfied she had a well-founded fear of persecution for one or more of the Convention reasons and affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
The Applicant commenced proceedings for judicial review in this Court by filing an application and an affidavit in support on 25th May 2007.
Grounds of Review
In her application the Applicant relies on two grounds:
a)There was an error of law in the Tribunal's decision constituting a jurisdictional error.
b)There was procedural error in the Tribunal's decision constituting an absence of natural justice.
In the application the Applicant sets out particulars in six paragraphs:
a)As to paragraph 1, the Applicant says that the Tribunal:
i)ignored or failed to consider a claim that she had made;
ii)ignored relevant evidence; and
iii)misstated or misunderstood her claim or made a mistake in relation to an important finding of fact.
b)In paragraph 2, the Applicant refers to the medical certificate from the hospital in Fuqing City and she pointed out that she had told the Tribunal that the accident to her husband happened on 5th May 2004. She claimed in her letter that the hospital was very unwilling to issue a medical certificate and eventually when she received it she did not pay too much attention to the date put on the certificate.
c)In paragraph 3, she claimed that she clearly informed the Tribunal that in order to support her claims regarding her husband's accident and his serious injury she had contacted him and asked him to send her all medical documents in relation to the accident and she asked for a further two weeks from the date when she wrote the letter.
d)In paragraph 4, she pointed out that on 27th April 2007 she had provided further information, being the further medical documents and the statutory declaration.
e)In paragraph 5, the Applicant claimed the Tribunal ignored or failed to consider her new claim in her material on 27th April 2007. She claims the Tribunal ignored relevant important evidence which had been made before it and as a result had misstated or misunderstood her claim and made a mistake in relation to an important finding of fact.
f)In paragraph 6 the Applicant said that in summary she never ever believed that her application had been assessed by the Tribunal fairly and carefully.
The Applicant’s Submissions
The Applicant provided a written outline of submissions in which she expanded on those grounds. In particular, the Applicant claims that the Tribunal dismissed the three additional medical documents that had arrived from China as irrelevant and did not take them into account or have any real regard to them. She claimed that on the assumptions made by the Tribunal it cannot be said that consideration of those documentary evidences and the proper inferences to be drawn from them were without any relevance in their deliberation and that this was jurisdictional error. The Applicant refers to the decision of the Full Court of the Federal Court in SZCOQ v Minister for Immigration & Multicultural Affairs[4].
[4] [2007] FCAFC 9
The Applicant went on to submit that even if the Tribunal had some doubts about her first medical document, it would definitely be unfair that the Tribunal simply regarded the other three documents as false. The Applicant claimed that apprehended bias had been established because the Tribunal so lightly dismissed her critical explanation as to the reason why there were some problems with the first medical document based on nothing but an assumption by the presiding Member.
As to the other three documents, the Applicant claimed that the Tribunal assumed they were fraudulent simply because of the problems arising from the first document, the certificate of 5th May 2004. She refers to the decision of Driver FM in SZILP v Minister for Immigration & Citizenship & Anor.[5]
[5] [2007] FMCA 592
The Applicant in oral submissions told the Court that everything she had said to the Tribunal was true, that the Tribunal did not consider the evidence that she provided and did not really consider her application. She claimed that the Tribunal had made its decision based on an assumption and complained that the Tribunal had not given her a further two weeks to provide the additional information for which it had asked. She told the Court that her husband was still sick and that the Tribunal had not treated her fairly because the Tribunal was biased in summarily dismissing the latter medical documents.
The First Respondent’s Submissions
For the First Respondent Minister Ms Sirtes of counsel summarised the Applicant's grounds in this way:
a)first, that the Applicant was denied procedural fairness or natural justice because the Tribunal:
i)ignored or failed to consider a claim that she made,
ii)ignored relevant evidence, and
iii)misstated or misunderstood her claim or made a mistake in relation to an important finding of fact.
b)Second, the Applicant took issue with the Tribunal's findings in respect of the medical certificate and her credibility in that regard.
c)Third, that the Tribunal ignored a new claim raised by the material on 27th April 2007, and
d)Finally, that the Tribunal did not assess her application fairly and carefully.
As to the first ground, the procedural fairness and natural justice ground, Ms Sirtes submitted that the Tribunal had fully addressed the various integers of the Applicant's claims and in finding that the Tribunal did not accept that the Applicant fled China because of her political opinion, actual or imputed, or membership of a particular social group, it is submitted that the Tribunal had assessed the Applicant's claimed fear of persecution (See WAEE v Minister for Immigration & Multicultural & Indigenous Affairs[6]).
[6] (2003) 75 ALD 630 at [47]
Ms Sirtes went on to submit that even if there was some aspect of the Applicant's evidence that had not been specifically addressed within the Tribunal's findings and reasons the definitive and
all-encompassing nature of the Tribunal's findings as set out subsume such matters within it. It is not a basis for jurisdictional error that the Tribunal made an incorrect factual finding. Even if the Tribunal did err in making a factual finding, that is not sufficient in and of itself to constitute jurisdictional error. I am referred to a number of decisions, including MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs[7], Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs[8] and NAAP v Minister for Immigration & Multicultural & Indigenous Affairs[9].
[7] [2005] FCAFC 94 at [28]
[8] [2005] FCAFC 8 at [31]
[9] [2003] FCAFC 76 at [37]
As to the second ground, Ms Sirtes submitted that it was essentially an attempt to engage the Court in merits review and should be dismissed.
On the third ground she submits it largely repeated ground 1, but also asserted that the Tribunal ignored a new claim raised by the Applicant's response to s.424A letter. Rather, it is submitted that the Applicant's response to the s.424A letter provided corroborative evidence rather than providing a new claim. The Tribunal addressed that material in respect of its probative value and was not prepared to give weight to that new material because of the Tribunal's adverse finding as to the Applicant's credibility.
The fourth ground relating to an allegation of unfairness it is submitted relates to merits review and claims that the Tribunal dismissed the additional documents as irrelevant and did not take them into account. It is submitted also that if the Tribunal might have some doubts about the Applicant's first medical document it would be unfair that the Tribunal simply regarded the other documents as false.
Ms Sirtes, however, submits that the Applicant misunderstood or miscast the nature of the Tribunal's reasoning and points out that the Tribunal did not reject the documents simply because it had not accepted the earlier medical certificate of 5th May 2004 and pointed out that the finding regarding the earlier certificate was just one part of the Tribunal's overall adverse credibility finding. It was that credibility finding which featured prominently she submitted in the Tribunal's rejection of the subsequent documents.
As to the reference of the decision of the Full Court of the Federal Court in SZCOQ, it is submitted on behalf of the Minister that the decision under review is not one where it is open to conclude that the Tribunal gave anything other than meaningful consideration to the evidence. The fact that weight was attributed on the basis of an earlier credibility finding does not give rise to a jurisdictional error.
As to the allegations of bias contained in the written submissions, Ms Sirtes pointed out that bias must be distinctly made and clearly proved and it is a rare circumstance where a lack of good faith or bias on the part of the Tribunal would be apparent merely from the written reasons. I am referred to the decisions of Minister for Immigration & Multicultural & Indigenous Affairs v Jia[10] and SBBF v Minister for Immigration & Multicultural & Indigenous Affairs.[11]
[10] (2001) 205 CLR 507 at [69]
[11] [2002] FCAFC 358 at [16]
Ms Sirtes also submitted that the Court should distinguish the decision of Driver FM in SZILP because in SZILP an apprehension of bias was found for reasons including, amongst other things, a finding about document fraud in Nepal. I was referred to his Honour's decision at [45] where his Honour found:
In my view, a fair minded observer would apprehend that the presiding member did not bring an independent mind to bear on the issue to be decided because he so lightly dismissed the applicant’s critical explanation as to the reason why he was not harmed while he remained in his home village, based upon nothing but an assumption by the presiding member as to the political motives and likely actions of the Maoists. This finding is reinforced by the manner in which the presiding member dealt with the letter which, on its face, was a threat from the Maoists. The Tribunal assumed that the letter must be fraudulent because it had found that the applicant had fabricated the claim which the letter supported. There was no analysis of the appearance or contents of the letter. Rather, there was a complete unwillingness to pay regard to the letter.
Ms Sirtes submitted, and in my view correctly, that this is hardly analogous to the case before the Court. Certainly the Tribunal had regard to Independent Country Information regarding document fraud in China, but it was that information in conjunction with the Applicant's own inconsistent story which meant that the medical certificate of 5th May 2004 could not legitimately have been prepared on the date claimed. That led to a finding it was not a genuine document. The Tribunal did have regard to the document itself and it was the content of the document rather than its physical appearance which betrayed its authenticity. For those reasons it is submitted that the decision in SZILP is distinguishable from the present case.
Conclusions
Returning to the Applicant's claims, I am not satisfied that the Tribunal ignored or failed to consider a claim made by the Applicant or that it ignored relevant evidence or that it misstated or misunderstood her claim. A reading of the Tribunal decision record shows a consideration not only of the Applicant's original claim and the Applicant's evidence at the hearing, but a consideration of the Applicant's replies to the s.424A letter of 4th April 2007; both the reply of 18th April 2007 and 27th April 2007.
The Tribunal made an overall comprehensive finding about the Applicant's credibility based on her evidence. The Tribunal did not accept any aspect of the Applicant's claim. The medical certificate of 5th May 2004 was rejected not just because the Tribunal had read about the prevalence of document fraud, but because of its inconsistency on its face. The medical certificate related to the accident allegedly sustained by the Applicant's husband's longstanding disabling injuries and a lengthy period of hospitalisation. It could not have been prepared on the date of the accident, 5th May 2004. The Tribunal considered and rejected the Applicant's explanation that the date must have been wrong and that she had not noticed that. In my view, the evidence supports such a finding by the Tribunal.
The Applicant's claim that she asked for a further two weeks on 18th April so that she could get further documents from China to my mind goes nowhere. The Applicant did get these further medical certificates and it is quite clear from the Tribunal decision record that the Tribunal considered them. The decision was not signed until 30th April and it was handed down on 1st May. It appears from the Court Book that the Tribunal had written to the Applicant on 20th April indicating that the decision was going to be handed down on 1st May.[12] It was a week later that the material from the Applicant, including the medical certificates from China, arrived. It is clear from the Tribunal decision record that the Tribunal considered that material and incorporated that into its decision.[13]
[12] See Court Book at pages 88 to 89
[13] See Court Book pages 129 and 130. Also at page 134
In my view, the Tribunal did consider the evidence but attached no weight to it not solely because it had rejected the spurious certificate of 5th May 2004, but based on its overall and comprehensive assessment of the Applicant's lack of credibility. Thus, the Tribunal did not ignore or fail to consider what the Applicant calls her new claim in her material on 27th April 2007. It was not a new claim. The Applicant was not claiming something that had not been raised before. The Applicant was just producing further evidence to bolster her claim. The Tribunal did not ignore relevant important evidence, it considered it. The Tribunal has not misstated or misunderstood the Applicant's claim or made a mistake in relation to an important finding of fact.
As to the allegation of bias, I specifically asked the Applicant about that allegation and she said at the hearing the Tribunal was biased because the Tribunal said that the documents were false but the documents were true. In the Applicant's written material, which I accept would have been prepared for her by someone else, the Applicant claimed biased or unfairness on the part of the Tribunal because of rejection of the Applicant's documents based either on an assumption or based solely on the fact that the earlier document had been rejected. That is not the case.
I am not satisfied that there is any evidence of bias and that claim must be rejected. The Applicant has not shown any jurisdictional error. The Applicant is not legally represented and I read through the decision myself independently of either the Applicant's claims or the submissions of the First Respondent, but I am unable to discern any jurisdictional error or any arguable case for one. In the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by s.474 of the Migration Act. It follows that the application will be dismissed.
There is an application for costs on behalf of the First Respondent. The Applicant has been wholly unsuccessful in her claim and in my view this is a matter where it is appropriate to make an order for costs in favour of the First Respondent. The amount of $4,700.00 which is claimed is below the figure that the Court Rules would allow and I believe it to be an appropriate one. The Applicant is to pay the First Respondent's costs in the sum of $4,700.00. I will remove the application from the list of cases awaiting finalisation.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 16 October 2007
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