SZLAA v Minister for Immigration
[2007] FMCA 2090
•13 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLAA v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2090 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal affected by bias – whether Refugee Review Tribunal considered applicant’s claims fairly – whether Refugee Review Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth) – whether Refugee Review Tribunal’s findings were based on evidence. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 424A(1);474; pt.8 div.2 |
| Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 NADH of 2001 & Others v Minister for Immigration and Multicultural and Indigenous Affairs 214 ALR 264 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; SCAA v Minister for Immigration and Multicultural Affairs [2002] FCA 668 |
| Applicant: | SZLAA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1998 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 13 December 2007 |
| Date of last submission: | 13 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 December 2007 |
REPRESENTATION
| Applicant appeared in person with Mandarin interpreter |
| Counsel for the Respondent: | Mr P. Cleary |
| Solicitors for the Respondent: | Ms B Styles, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1998 of 2007
| SZLAA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 17 May 2007 and handed down on 31 May 2007.
The applicant claims to be from the Peoples Republic of China (“PRC”).
The applicant arrived in Australia on 10 September 2006 having departed legally from Baiyun on a passport issued in his own name and a business visa issued on 6 September 2006.
On 25 October 2006, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Act.
In his protection visa application, the applicant claimed that he feared persecution by PRC authorities for the Convention reason of political opinion or imputed political opinion.
On 12 January 2007, a delegate of the first respondent refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 8 February 2007, the applicant lodged an application for review of the delegate’s decision by the Tribunal. The applicant provided no further material in support of the review application. On 17 May 2007, the Tribunal affirmed the decision of the delegate not to grant a protection visa.
On 28 June 2007, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The applicant’s claims and the Tribunal decision
On 7 March 2007 the Tribunal invited the applicant to attend a hearing on 27 March 2007. The applicant attended that hearing and gave oral evidence.
On 26 April 2007, the Tribunal wrote to the applicant identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the applicant to comment upon it.
The applicant’s claims decision of the Tribunal are accurately summarised by written submissions of the first respondent’s counsel, Mr Cleary, as follows:
“The applicant’s claims
9. The applicant claims that he fears persecution in the PRC by reason of his political opinion[1].
[1] Green Book (GB) 25-29 and 90-96
10. The applicant’s claims of persecution are based on his alleged activities in protesting against government authorities from the Human Province relating to:
i. the expropriation of the applicant’s factory by municipal fiat;
ii. the demolition of the factory; and
iii. claims for compensation
11. The applicant claims he is a person of adverse interest to the Human PSB and that he would be subject to monitoring by the PSB.
…
The Tribunal’s decision
14. The Tribunal reviewed at length the claims and evidence of the applicant.
15. Firstly, it reviewed the applicable law in unobjectionable terms.
16. It then set out the claims and evidence. Finally, it set out its findings and reasons.
17. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution.
18. The Tribunal did not believe the applicant’s claims. The Tribunal found the applicant was able to exit the PRC unhindered and was of no interest to the PRC authorities, including the PSB[2]. This was the subject of a s.424A letter from the Tribunal[3].
19. The Tribunal concluded the applicant’s claims were an elaborate concoction[4].
20. The Tribunal was not satisfied with the contradiction in the evidence given by the applicant in a previous business visa, and the claims to the PVA. In his business visa application, the applicant claimed his business in the PRC was a going concern. This was the subject of a s.424A letter from the Tribunal[5].
21. For these reasons, the Tribunal found the applicant was not a refugee and affirmed the delegate’s decision.”
[2] GB 97-98
[3] GB 73-75
[4] GB 97
[5] GB 73-75
The proceeding before this Court
The applicant was unrepresented before this Court although had the assistance of a Mandarin interpreter.
The applicant confirmed that he relied upon the grounds identified by him in his application filed 28 June 2007 and his written submissions filed 3 December 2007. Those grounds are as follows:
“1. The Tribunal failed to make its finding on correct evidences given by me in relation to my departure from China.
2. The Tribunal made its finding with bias unwarranted assumption in relation to my protest against the PRC authorities.
3. The Tribunal misunderstood or misstated the evidence given by me.
4. The Tribunal made its finding without giving any reason.
5. The Tribunal failed to comply with its obligations under s.424A(1) of the Act.
6. In summary I have never believed that my review application has been carefully and fairly assessed by the Tribunal.”
The applicant was invited to make submissions in support of his application. The applicant did not have any meaningful submissions to make save to say the Tribunal did not consider his claims fairly.
Ground 1
Ground 1 appears to cavil with the Tribunal’s finding that it did not accept the applicant’s account of how he left the PRC.
However, the Tribunal did not believe the applicant’s claims and found that he was “not a witness of truth”. The Tribunal rejected the applicant’s explanation as to how he came to depart the PRC when it put to the applicant that the reason he was able to leave was because he was not of adverse interest to the PSB. The Tribunal noted the applicant’s response in detail, however, did not accept the applicant’s explanations as satisfying the Tribunal that he was of interest to authorities in the PRC.
The Tribunal comprehensively rejected the applicant’s claims of past persecution and found that “his claims are an elaborate concoction to give verisimilitude to an alleged persecution which never happened.”
At the heart of the Tribunal’s adverse credibility findings was its rejection of the applicant’s explanation of inconsistencies in the applicant’s application for an Australian business visa and information provided in support of his protection visa application. In particular, the Tribunal rejected the applicant’s explanation that his Australian business visa application was made by his friend to assist his rapid departure from the PRC. The Tribunal stated that it found this explanation
“untenable that somehow the applicant’s accomplice managed to “stage manage” the entire fraudulent visa application process (from a neighbouring province) without any direct communication between the applicant and the department.”
The findings made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons.
Otherwise, ground 1 is no more than a disagreement with findings made by the Tribunal and which seeks merits review, which this Court cannot undertake.
Accordingly, ground 1 is not made out.
Ground 2
Ground 2 makes the serious allegation of bias. Such an allegation requires evidence, at least a transcript of the Tribunal hearing (SCAA v Minister for Immigration and Multicultural Affairs [2002] FCA 668). The applicant was directed by this Court on 26 July 2007 to file and serve all evidence on which he relied, including any transcript of a Tribunal hearing by 27 September 2007. No evidence has been filed by or on behalf of the applicant in support of his application.
The Tribunal identified with particularity both the written and oral claims made by the applicant. The Tribunal noted exchanges it had with the applicant about his evidence and put to the applicant matters that caused it concern and noted the applicant’s responses.
On 26 April 2007, the Tribunal wrote to the applicant in accordance with s.424A of the Act giving him information that may be part of the reason for affirming the decision under review, namely the inconsistencies in information provided by the applicant in support of his business visa application with claims made by the applicant in his protection visa application. The Tribunal’s letter informed the applicant that this information may be adverse to him because it may lead the Tribunal to find that claims made by him were false and that he was “a person of poor credibility”.
In its letter, the Tribunal also identified country information that suggested that PRC citizens that are subject to arrest warrants or under investigation are on departure alert lists in the PRC. The Tribunal informed the applicant in its letter that this country information was adverse to him because he was unhindered in his departure from China. The letter informed that applicant that this information was adverse to the applicant because it may indicate that the applicant is not a person of interest to authorities in the PRC.
The letter invited the applicant to comment by 10 May 2007. On 10 May 2007 the applicant provided a statutory declaration to the Tribunal in which he responded to the Tribunal s.424A letter.
The Tribunal made findings that were open to it on the evidence and material before it and for which it provided reasons, including its adverse credibility findings. Evaluation of the applicant’s credibility is a matter par excellence for the Tribunal.
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than open with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71]-[72], [127]; Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 & Others v Minister for Immigration and Multicultural and Indigenous Affairs 214 ALR 264 at [115]).
Accordingly, ground 2 is not made out.
Ground 3
Ground 3 alleges that the Tribunal misunderstood or misstated the applicant’s evidence. The particulars in support of this ground do no more than disagree with the findings of the Tribunal. As stated above in these Reasons, the findings of the Tribunal were open to it on the evidence and material before and for which it provided reasons.
Otherwise, this ground seeks merits review, which this Court cannot undertake.
Accordingly, ground 3 is rejected.
Ground 4
Ground 4 alleges that the Tribunal made findings without reasons. The particulars in support of this ground are no more than a disagreement with the Tribunal’s adverse credibility findings. To the extent that the particulars assert that the Tribunal “could easily verify” the applicant’s claims, such assertion does not disclose any error going to the Tribunal’s jurisdiction. The Tribunal is not obliged to obtain evidence in support of the applicant’s claims. It is for the applicant to satisfy the Tribunal that he meets the criteria required for being a refugee (Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596).
As stated above in these Reasons, the Tribunal’s findings were open to it on the evidence and material before it and for which it provided reasons.
Accordingly, ground 4 is not made out.
Ground 5
As referred to above in these reasons, the Tribunal wrote to the applicant in accordance with s.424A of the Act identifying the information before it that may be part of the reason for the Tribunal affirming the decision under review; explained the relevance of such information; and, invited the applicant to comment. The applicant did in fact respond to the Tribunal’s letter in a meaningful way. There is no complaint in the applicant’s response that the applicant did not understand why the information identified by the Tribunal in its letter was relevant to the review.
The Tribunal was entitled to evaluate the applicant’s responses and indeed was obliged to make findings about the claims made by the applicant in support of his claim to have a well-founded fear of persecution by the authorities in the PRC for the Convention-related reason of political opinion or imputed political opinion. This the Tribunal did.
The Tribunal complied with its obligations under s.424A(1) of the Act.
Accordingly, this ground is not made out.
Ground 6
Ground 6 is a bare assertion of error unsupported by particulars.
A fair reading of the Tribunal’s decision makes clear that the Tribunal fairly and carefully identified the applicant’s claims; explored the applicant’s claims with him at the hearing; put to the applicant concerns it had about his evidence both at the hearing and, where relevant, in a s.424A letter; the Tribunal had regard to the applicant’s response to the s.424A letter; the Tribunal made findings based on the evidence and material before it; the Tribunal applied the correct law to those findings in reaching its conclusions.
Accordingly, ground 6 is rejected.
Applicant’s submissions
The submissions of the applicant raise no further ground not otherwise dealt with above in these Reasons.
The Tribunal made its decision in accordance with the statutory regime, including its review.
Conclusion
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 13 December 2007
0