SZKSO v Minister for Immigration
[2007] FMCA 1413
•13 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKSO & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1413 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming decision not to grant protection visa – applicants are 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 SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 followed. |
| First Applicant: | SZKSO |
| Second Applicant: | SZKSP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1750 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 7 August 2007 |
| Date of last submission: | 7 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 August 2007 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr Mitchell |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Application is dismissed.
The Applicants are to pay the First Respondent's costs fixed in the sum of $5,000.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1750 of 2007
| SZKSO |
First Applicant
| SZKSP |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a review of a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 27th April and handed the decision down on 8th May 2007. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicants Protection (Class XA) Visas.
The Applicants have sought judicial review of that decision by means of an application and affidavit filed on 4th June 2007. They filed an amended application on 20th July 2007 and in that document they seek the following:
i)A declaration that the Tribunal decision was invalid and contrary to law.
ii)An order that the Tribunal decision be quashed or set aside.
iii)An order that the application be remitted to a differently constituted Refugee Review Tribunal be determined in accordance with law.
iv)An order for costs.
I note that the Applicants are not legally represented and that their filing fee for this application was waived. An order for costs in favour of the Applicants would seem to be academic at this stage.
I would comment that whilst I understand that the Applicants seek an order in the nature of mandamus remitting their application to the Refugee Review Tribunal for determination according to law, it is not in my view appropriate for the Federal Magistrates Court to make an order that the Tribunal be differently constituted. The Full Court of the Federal Court has made it clear that the constitution of the Tribunal is a matter for the Principal Member. (see SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 at [30])
It does of course go without saying that before the Court can set aside or quash a Tribunal decision, it must be satisfied that the decision is affected by jurisdictional error. At this stage it is useful to examine the background to this matter.
Background
The Applicants, who are husband and wife, are citizens of the People's Republic of China. They arrived in Australia on 30th September 2006. They applied for Protection (Class XA) visas on 13th October 2006. Their applications were refused on 4th November 2006 and on
1st December they applied to the Refugee Review Tribunal for a review of the delegate's decision.
The Tribunal wrote to the Applicants care of their migration agent on 11th December 2006 inviting them to attend a hearing to take place on 8th February 2007. The Applicants attended that hearing and gave evidence. The Tribunal noted that it was only the First Applicant who had made specific claims under the Refugees Convention and the Second Applicant, her husband, was relying on his membership of the First Applicant's family.
After the hearing, the Tribunal wrote to the Applicants care of their migration agent on 19th March 2007. That letter was headed ‘Invitation to Comment on Information’ and told the Applicants that the Tribunal had information that would, subject to any comments that they made, be the reason, or part of a reason, in deciding that the Applicants were not entitled to protection visas.
The Tribunal set out that information which included matters that the Applicants raised at the hearing and it also included information provided by putting a number of questions to a Viticultural expert, a Mr Shayne Hackett, who is with the National Wine & Grape Industry Centre at the NSW Department of Primary Industries, and is attached to the School of Wine and Food Sciences at Charles Sturt University. The letter set out the questions asked of Mr Hackett and his reply. The letter also quoted from Li Shao-Hua, professor of the Department of Fruit Science at the College of Horticulture, Academic Affairs Office, China Agricultural University in Beijing.
The letter also referred to other Independent information about grape production and the letter also included questions about the Applicant's passbook. The Tribunal invited the Applicant's comment in English in writing by 2nd April 2007. The letter is somewhat difficult to follow in the Court Book.
The Applicants did reply by means of a statutory declaration on
2nd April 2007. The statutory declaration was from the First Applicant. The First Applicant set out her comments in reply to material referred to in the Tribunal s.424A including comments about growing a particular type of grape in China called the Jufeng grape and about the First Applicant's history in China and about how she and her husband obtained passports.
The Tribunal handed down its decision on 8th May 2007. A copy of the Tribunal decision record can be found at pages 98 to 119 of the Court Book. The Tribunal noted the First Applicant claimed that six months after the birth of her first child she leased some land in order to plant grapes, that she had decided to sell the grapes at a wholesale market, transport the grapes to the market, paid all the necessary charges and completed all the forms, but was stopped by a market administrator who asked for a fee which was in fact a bribe and the Applicant did not have the money and by the time the Applicant's husband was able to borrow the money to pay the bribe the grapes had perished.
The Applicant sought at investigation into the activities of this man from the local Anti-corruption Bureau but did not receive a response. The Applicant had a second child and was forced to pay a fine of 8000 Yuan for breaching China's one child policy. She spoke to other victims of the corrupt officials and gathered signatures on a petition and was warned by the authorities that she would be subjected to severe punishment if she persisted in complaining about the corrupt person, and eventually she was arrested by the PSB in June 2006 and accused of engaging in anti government activities. She was detained for three weeks and mistreated. She was not released until her husband paid money.
Two of the Applicants' friends were arrested by the PSB for distributing pamphlets. The friends confessed to the authorities that the Applicant had organised the anti-government pamphlets. Fortunately for the Applicant she had already left China. The Applicant gave evidence at the hearing and was asked a considerable number of questions about her planting and growing of grapes and about her history. The Tribunal also heard evidence from the Applicant's husband who confirmed that the Applicant was severely persecuted in China by corrupt officials because she went to a protest and took part in anti‑government activities.
Tribunal’s Findings and Reasons
The Tribunal considered its s.424A letter and the Applicants’ comments. The Tribunal looked at Independent country information in some detail and in its findings and reasons accepted that the Applicant was a national of China, having sighted the First Applicant's passport at the hearing. The Tribunal noted the Applicants claims as having been based on the ground of political opinion and set out its understanding of those claims. However, the Tribunal did not find the Applicant to be a credible witness and said:
The totality of her oral evidence shows a propensity to tailor her evidence in a manner which achieves her own purpose.[1]
[1] See Court Book at page 117
The Tribunal did not accept the Applicant’s key claims based on its adverse opinion of her credibility. The Tribunal was prepared to accept that the Applicant was issued with a fine for having a second child in China, but did not accept that the fine was issued by a corrupt official. The Tribunal found that the Applicant did not provide any persuasive evidence to indicate that the fine was corruptly issued or that it was issued essentially and significantly for any Convention reason.
The Tribunal did not accept the First Applicant had been harmed in the past or that there was a real chance that she would be harmed for a Convention reason if she were to return to China in future.
The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution. The Tribunal also added that the Second Applicant's claims rested on those of the First Applicant. The Tribunal affirmed the decision not to grant either Applicant a Protection (Class XA) visa.
Application for Judicial Review
The Applicants in their amended application claimed:
In deciding their application, the Tribunal has ignored or failed to consider a claim that the Applicant made, or ignored other relevant materials before it; or misstated or misunderstood her claim or made a mistake in relation to an important finding of fact and incorrectly assessed her credibility.
Particulars of that claim relate to the Applicant taking issue with the Independent Country information being the answers by the viticultural expert, Mr Hackett, which was referred to in the 424A letter.
The Applicant's claim that the Tribunal had completely ignored the fact that Mr Hackett might be an expert for grapes growing in the particular geographic environment of New South Wales in Australia, but was definitely not an expert for grapes growing in a particular geographic environment of Fujian Province in China. The Applicants claim that the Tribunal had failed to consider their evidence properly and fairly. In answer to that, it is fair to say that the Tribunal has relied on information from experts in the field. The Applicant who was claimed to be a grape grower has provided no other evidence of her expertise in the field and has not brought any expert evidence.
In my view it was perfectly open for the Tribunal to consider the expert evidence and the Independent country information rather than the evidence of the Applicant on the questions of viticulture.
The Applicant also claims that the Tribunal made its finding with bias. It is well established that bias or bad faith is a serious allegation alleging personal fault on the part of the decision-maker must be strictly alleged and proved. (See SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 and SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361).
The basis of the Applicant's claim of bias is a claim that the Tribunal completely ignored Independent evidence that the Tribunal submitted to it, and in effect preferred the evidence of Mr Hackett to that provided by the Applicant. That does not constitute bias and there is no evidence of bias and the ground must fail.
The Applicant claimed that the Tribunal failed to comply with its obligations under s.424A of the Migration Act. The claim is:
Although the Tribunal gave me a chance to comment on some of the information after the Tribunal's hearing, the Tribunal denied my rights to comment on the information that it used as the reason, or part of the reason, in its final decision. Particularly, Mr Shayne Hackett's report or advice has played a particular important role in the Tribunal's decision. Therefore, the Tribunal should, at least provide me a complete copy of Mr Shayne Hackett's report or advice including his qualification so that I could have a GENUINE opportunity to make my comments on it. But, the Tribunal failed to do so.
It is hard to see what the Applicant means by this. The material from Mr Hackett's information that the Tribunal relied on was in fact included in the s.424A letter. The Applicant had that information made available to her and did in fact comment on it. That ground must fail.
The Applicant complains that the Tribunal failed to comply with its obligations under s.425 of the Act saying:
I do not think that the Tribunal has genuinely given me or my husband chances to give oral evidence; and I do not think that I or my husband have genuine opportunities to comment on the issues arising from the Tribunal during the hearing.
The only evidence of that comes from the Court Book. It is quite clear that both Applicants gave evidence at the Tribunal and there is no transcript to show that the evidence of the Applicants was unduly curtailed or truncated or that they were prevented from anything. The issue about the Applicant's story of having been a grape grower was clearly a matter of great concern to the Tribunal and it was that issue that the Tribunal focussed on at the hearing. This was a key part of the Applicant's claim. In my view there is no breach of s.425 of the Migration Act.
The Applicants are not legally represented in these proceedings.
I examined the decision independently of the Applicant's application or the Respondent's submission in order to ascertain whether there is any arguable case of jurisdictional error and I am unable to discern any. In my view there is no jurisdictional error. The Tribunal decision is a privative clause decision as defined in sub-s.474(2) of the Migration Act. Accordingly, it is not subject to declaration or orders in the nature of certiorari or mandamus. The application must be dismissed.
There is an application for costs on behalf of the First Respondent Minister in the sum of $5,000.00. There is no reason to depart from the practice that costs follow the event. I note, however, that the First Applicant has told the Court that neither she nor her husband have employment and could not meet the amount in the scaled fee or $5,000.00. I see no reason to doubt this and in the circumstances I will allow a period of six months to pay.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 16 August 2007
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