SZKTG v Minister for Immigration
[2007] FMCA 1513
•5 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKTG & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1513 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision of a delegate of the Minister refusing to grant a protection visa – applicants are citizens of the People's Republic of China claiming fear of persecution for reasons of their political opinion and membership of a social group – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36(2), 36(2)(b), 420, 424A, 424A(1), 424A(3)(b), 425, 474(2) |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) CLR 259 followed MZXEL v Minister for Immigration [2007] FMCA 13 distinguished SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 followed SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 followed SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 followed |
| First Applicant: | SZKTG |
| Second Applicant: | SZKTH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1832 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 22 August 2007 |
| Date of Last Submission: | 22 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 September 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Applicant: | Nil |
| Solicitors for the Respondents: | Ms Watson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $4,700.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1832 of 2007
| SZKTG |
Applicant
| SZKTH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) that was signed on 3rd May and handed down on 15th May 2007. The Tribunal affirmed the decision of a delegate of the Minister for Immigration & Citizenship not to grant the applicants protection (Class XA) visas.
The applicants by means of an application and an affidavit in support filed on 12th June 2007 seek judicial review of the Tribunal's decision. In particular they seek the following:
i)A declaration that the decision was invalid and contrary to law.
ii)An order that the decisions in each of them 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 law.
iv)An order that the respondent pay the costs of the application.
v)Such further or other order as the Court sees fit.
First of all I would point out that in my view the Federal Magistrates Court does not have the power to make an order when remitting a matter to the Refugee Review Tribunal that the Tribunal be differently constituted. The question of constitution of the Refugee Review Tribunal is a matter for the principal member (see SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 at [30] and [35]).
I am also of a view that an application for costs would appear to be somewhat academic. The applicants are not legally represented and have not been legally represented at any time during these proceedings. I note that the filing fee for the application has been waived. It is difficult to see what costs there would be.
The background to this matter is that the applicants are citizens of China. They arrived in Australia on 5th December 2006 and applied for protection (Class XA) visas on 13 of that month. A delegate of the Minister refused to grant those visas on 29th December 2006.
The applicants then applied to the Refugee Review Tribunal on
30th January 2007 for a review of the delegate's decision.
The application was submitted with the assistance of a migration agent, and apart from a covering letter, no additional documents were supplied to the Tribunal with the application.The Tribunal wrote to the applicants on 15th February 2007 advising them that it had considered the material before it but was unable to make a favourable decision on that information alone. The letter invited the applicants to attend a hearing of the Tribunal which was scheduled to commence at 10:30 am on 14th March 2007.
The applicants through their agent responded, indicating that they wished to attend the hearing and would require an interpreter in the Mandarin dialect of Chinese.The applicants in fact attended the hearing and provided to the Tribunal their passports issued by the People's Republic of China. The Tribunal heard evidence from the first applicant, who is the husband, and noted that the second applicant applied as a member of the applicant's family unit. She also gave evidence at the hearing, stating that she applied for a passport in 2003 because her husband asked her to. The second applicant also told the Tribunal that when she arrived at Ningbo the assistant to her husband had not been arrested.
The Tribunal handed down its decision on 15th May 2007. A copy of the Tribunal decision record can be found in the Court book at pages 82 through to 99. In the decision the Tribunal set out the claims and evidence of the applicants at pages 85 through to 93. That description included the application for a protection visa and a statutory declaration from the first applicant setting out that the applicants arrived in Australia as part of a tourist group, but their purpose for departure from China was to escape from political persecution by the authorities in China.
The first applicant claimed that he worked in a jewellery shop in a city called Ningbo and came under adverse notice because he was discriminated against or mistreated by different government agencies. He claimed that various officials were corrupt and demanded bribes, and referred to another self employed person, a Mr Zhen Zhang, who was arrested because he had not given a bribe to local officials. As a result this man was detained and subjected to torture by the police.
He was finally released after his family paid bribes to local officials, but was not able to continue in his business because of physical and mental injuries. Another self employed person, Ms Li, was also bullied and injured by a local tyrant and her shop was damaged.The applicant and others were shocked by the sufferings of these two people and established an organisation to protect their basis human rights. First the association concentrated on recruiting new members in Ningbo City to make the association strong enough to protect it against corrupt officials and local tyrants.
The applicant himself claimed to have been interrogated in April 2006 by the Public Security Bureau on three occasions. He was denounced for setting up an illegal organisation and was required to disband that association as soon as possible. His evidence was that on
1st September 2006 he restarted the operation of the association, but it became an underground organisation and each meeting was held in secret.The first applicant claimed that he could not return to China because of his having come under adverse notice. He left legally from Shanghai airport. He had one employee, one Ms Chen, and this employee or assistant was arrested on 28th November 2006, a day after the applicant's wife arrived in Fujian. And it will be recalled that the applicants arrived in Australia on 5th December 2006.
The Tribunal's findings and reasons are set out on pages 93 through to 99 of the Court book. The Tribunal accepted that the applicants were nationals of China and noted that the second applicant did not make independent claims and has sought a protection visa as a member of the family unit of the first applicant. I note that the applicants provided their passports to the Tribunal as evidence of their nationality and they were considered by the Tribunal against the People's Republic of China.
Although the Tribunal accepted the applicant's claims to be nationals of China, it did not accept any of the other claims. The Tribunal set out reasons why it did not accept those claims in detail from pages 94 through to 98. A summary of those reasons is set out. The Tribunal referred to the first applicant as "the applicant" for the purpose of the proceedings. The Tribunal did not accept the claims of the applicant because:
The applicant gave inconsistent evidence at the hearing about when he was first questioned by the police, or the PSB.
The Tribunal did not accept the applicant's claim that he sought protection because he feared being arrested and detained after his employee, an ordinary member of his association, was arrested. The Tribunal did not accept that the evidence of the applicant that someone must have reported the employee to the PSB and that only the people in the organisation knew who the founding members were. The Tribunal found that it was not credible that someone in a position of the applicant who claims that he was one of the founders of the association, and claims to have sought permission to set up the association originally, was not known as one of the founders, organisers, or office holders of the association.
The Tribunal found that the PSB was aware that the applicant was attempting to set up an organisation.
The Tribunal did not accept the applicant's evidence that the employee was arrested by the PSB because he was reported to be one of the key organisers for propaganda materials.
The Tribunal did not accept the applicant's evidence that he founded the association or that he was one of the organisers of an association which aimed to protect human rights, expose corruption and protect members from bullying and to protect the right of self employed people.
The Tribunal did not accept the applicant's evidence that on 1 September 2006 he activated or reactivated the organisation.
The Tribunal did not accept the applicant's evidence that he had tried from 2005 onwards to form an organisation to protect against corrupt officials and local tyrants.
The Tribunal did not accept the applicant's evidence that he was involved in printing or distribution of propaganda leaflets in Ningbo.
The Tribunal found the applicant's account that the first time he was questioned by the PSB in April 2006 that the PSB did not ask many questions over a period of about five hours as implausible.
The Tribunal did not accept the applicant's evidence that around seven or eight people, including all the other members of the standing committed, had been arrested by the police.
The Tribunal found:
The totality of the applicant's oral evidence shows a propensity to tailor his evidence in a manner which achieves his own purpose. In reaching this view the Tribunal has had regard to the inconsistency in the applicant's evidence at the Tribunal hearing as to the date he was first questioned by the PSB and the significant inconsistency between his evidence that the PSB did not know who the founding members of the association were even though he was questioned 13 times and had openly approached government and municipal organisations, as well as the PSB, on behalf of the association and yet the PSB arrested a mere member of the association. The Tribunal does not accept his evidence that the PSB detained him for five hours and sometimes did not ask him a single question after interrogating him on 13 different occasions. The Tribunal has also had regard to the inconsistency between the evidence of the applicant that he left China legally through Shanghai and the independent information about the stringency of border controls consulted by the Tribunal.[1]
[1] See Court Book at page 98
The independent evidence about the stringency of border controls in China is set out on page 93 of the Court book under the heading "Evidence from other sources", and noted a report from the United Kingdom Home Office 2005 China report about the Frontier Defence Inspection Bureau in China which is in charge of inspection barriers and is responsible for examining the passports and immigration departure cards of Chinese travellers.
The Tribunal was not satisfied that the first named applicant was a person to whom Australia has protection obligations under the Refugees Convention and did not satisfy the criterion set out in sub‑s.36(2) for a protection visa. The Tribunal noted that no specific convention claims were made by or on behalf of the second applicant, and the fate of her application depended on the outcome of the first applicant's application.
The Tribunal found that as the first applicant could not be granted a protection visa the other applicant could not satisfy the alternative criterion set out in sub-s.36(2)(b) and also could not be granted a protection visa. The Tribunal affirmed the decisions not to grant the applicants protection (Class XA) visas.
The applicants seek judicial review of that decision and in their application set out three grounds:
i)The Tribunal failed to comply with its obligations under s.424A(1) of the Migration Act.
ii)The Tribunal made its finding based on incorrect information or the information which has been misstated or misunderstood by the Tribunal.
iii)The Tribunal failed to comply with its obligation under s.425 of the Migration Act.
Particulars of the first ground, an allegation of a failure to comply with s.424A(1) of the Migration Act 1958 (Cth) (“the Act”) is set out as follows:
According to the Tribunal's decision the Tribunal has considered the information which there was inconsistency in my evidence at the Tribunal's hearing as to the date I was first questioned by the PSB and significant inconsistency between my evidence that the PSB did not know who the founding members of the association were, even though I was questioned at an openly approached government and municipal organisation, as well as the PSB on behalf of the association, and yet the PSB arrested a member of the association as the reason or part of the reason for affirming the decision that is under review.
The applicant went on to say:
I do not accept that I have given inconsistent information or evidence at the hearing before the Tribunal. I strongly believe that my information or my claims have been misstated or misunderstood by the Tribunal.
The applicant quoted from sub-s.424A(1) of the Act and claimed that the Tribunal failed to give him in writing information the Tribunal considered as the reason or part of the reason for affirming the decision that was under review and failed to ensure that he understood why it was relevant to the review and failed to invite him to comment on it in writing. The applicant did not in his submission refer further to that ground.
The particulars given of the alleged breach of s.424A(1) of the Act do not identify jurisdictional error. It was not necessary for the Tribunal to invite the applicant to comment in writing on the inconsistencies in his evidence because inconsistencies are not information for the purpose of s.424A of the Act. I refer to SZBYR v Minister for Immigration & Citizenship[2].
[2] (2007) 235 ALR 609 at 616
Again the evidence which the applicant gave which the Tribunal found to be inconsistent was in fact provided at the Tribunal hearing. Even if it were information, and it is not, it would fall within the exception set out in sub-s.424A(3)(b). The fact that the applicant did not accept that he had given inconsistent evidence and believed that his claims had been misstated or misunderstood by the Tribunal does not go towards whether or not there was a breach of s.424A of the Act. It appears, as the solicitor for the Minister submits, to take issue with the Tribunal's finding that the applicant gave evidence, and as that is a factual finding the Court is unable to review it[3].
[3] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272
The first ground fails.
The second ground alleges that the Tribunal made its finding based on incorrect information or the information has been misstated or misunderstood by the Tribunal. The particulars of that relate to the applicant's claim concerning the Ningbo Fujian Fellowship Association, of which the applicant claimed to be a founding member. The applicant claimed:
The association has actually been started twice. Firstly we tried to seek legal status which was open but we were unsuccessful. And secondly we had to restart it but maintained it as an underground organisation. It was open to the PSB to find my leading role played in the association at the first time, but it was definitely not easy for the police to find my actual status at the association for the second time. The Tribunal has completely mixed my evidence as mentioned above and it has apparently made a wrong finding.
First of all the applicant's claim that the Tribunal made a wrong finding or made a finding based on incorrect information is no more than a challenge to a factual finding made by the Tribunal. As such it is an attempt at merits review which is not available. As to the claim that the Tribunal misstated or misunderstood the applicant's evidence, it is clear that the Tribunal was aware that the applicant activated or reactivated the organisation as an underground organisation as and from
1st September 2006.The Tribunal set out the circumstances of the organisation going from an open organisation to an underground organisation in the Court book at page 92 and also at 96:
The Tribunal does not accept the applicant's evidence that on 1 September 2006 he activated or reactivated the organisation.[4]
[4] Court Book at 96
In my view the second ground fails.
The third ground alleges a failure to comply with s.425 of the Act.
The applicant's claim is:Under s.425 of the Act I believe that the Tribunal should and must provide me a genuine opportunity so that I am able to give my oral evidence in support of my claims or to present my argument against the issues arising from the review. Unfortunately I do not think that I have been given such a genuine opportunity, even if I was arranged a hearing. As a matter of fact, continually being interrupted by the Tribunal at the hearing and improper attitude of the presiding member of the Tribunal made me become more and more reluctant to make my claims or provide my evidence or present my argument at the hearing.
First of all it is clear that both applicants were invited to attend the hearing, and they attended the hearing and gave evidence with the assistance of an interpreter. Second, there is no evidence by way of a transcript or an affidavit that the first applicant was continually interrupted by the Tribunal member, nor is there any particularisation of or evidence about any improper attitude by the presiding member. That claim has just not been made out at all. I am mindful of the requirements of a fair hearing as provided in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs.[5]
[5] [2006] HCA 63
I have read the delegate's decision and in my view the issues identified in the delegate's decision were made clear to the applicant and formed the subject of the issues at the Tribunal hearing. In particular the delegate said:
I have concerns about the applicant's claim that he was arrested on account of his having established an organisation which became illegal. The applicant has not provided details or evidence to support his claim of having established a group or of having been arrested by the authorities. I also do not consider his claim that his associate has been arrested and has confessed to the authorities the involvement of the applicant in the underground movement.[6]
[6] Court Book 47-48
In my view the applicant has not made out any claim of any breach of s.425 or any denial of procedural fairness in the SZBEL sense.
The applicant filed a written outline of submissions on 20th August 2007. In that he submitted that the Refugee Review Tribunal assessed his credibility incorrectly. He sets out a quotation from the Tribunal's decision that the Tribunal did not accept his claim that he sought protection because he feared being arrested and detained after his employee was arrested. He claimed that the Tribunal ignored his important evidence, and yet I am of the view that the Tribunal did consider that evidence in the passages to which I have previously referred.
He went on to claim that as a matter of fact he had established two associations. The first one was an open organisation and the second one was an underground organisation established on 1st September 2006. In my view that issue was made perfectly clear in the Tribunal's decision, and I am satisfied that the Tribunal did not misunderstand the applicant's evidence. The applicant went on to say:
First I have to say that there was no basis or evidence to support the Tribunal's finding, and the Tribunal has in fact made its findings by making the assumptions without a basis in fact.
The Tribunal has in my view assessed the applicant's claims in significant detail, and I am not able to identify any finding made by the Tribunal that is not supported by the evidence. In any event it is up to the applicant to satisfy the Tribunal that the applicant meets the requirements of a visa, and it is not up to the Tribunal to provide positive evidence to disprove the applicant's claims.
Similarly, the applicant's second claim and the submission that the Tribunal made jurisdictional error by making a critical finding without evidence to support that finding is not particularised and I am unable to find any such instance in the Tribunal decision. The applicant seeks to rely on the decision of O'Dwyer FM in MZXEL v the Minister for Immigration[7], however, he does not indicate how that decision relates to the applicant's case, and in my view the decision in MZXEL can be distinguished on the facts.
[7] [2007] FMCA 13
The applicant's third claim is:
I have to say that the Tribunal failed to afford me the fairness required by s.421 of the Act and failed to act according to natural justice on the merits of my case as required by s.422.
It is instructive to look at the provisions of s.420 of the Act which says:
(1) The Tribunal in carrying out its functions under this Act is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal in reviewing a decision:
(a) Is not bound by technicalities, legal forms or rules of evidence, and
(b) Must act according to substantial justice in the merits of a case.
The applicant has not provided any particulars of any claim that the Tribunal failed to meet the requirements of s.420 of the Act and I am unable to identify any. In short, it appears that this claim, despite its reliance on s.420 of the Act, is no more than a challenge to the Tribunal's factual findings, and such a challenge is not open on judicial review.
I am mindful of the fact that the applicant is not legally represented in these proceedings. I have read through the Tribunal decision and supporting material independently of the applicant's claims and of the first respondents submissions and I am not able to identify any arguable case for any jurisdictional error. I am satisfied that no jurisdictional error has been made out, and in the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by sub-s.474(2) of the Act. As it is a privative clause decision it is not open to declaration or orders in the nature of certiorari or mandamus.
It follows that the application must be dismissed, and I will reserve the question of costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 31 August 2007
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