SZLBD v Minister for Immigration
[2008] FMCA 78
•5 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLBD v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 78 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – procedural fairness – no breach of s.424A or s.425(1) of the Act. |
| Judiciary Act 1903 (Cth), s.39B, Migration Act 1958 (Cth), ss.5(1), 36(2), 65(1), 91R, 91S, 422B(1), 424A, 424A(1), 424A(3), 424A(3)(b), 425, 425(1), 426(1), 426A , 441A(4)(c)(i), Migration Regulations 1994 (Cth) |
| SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63, 231 ALR 592 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Abebe v Commonwealth (1998) 197 CLR 510 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 |
| Applicant: | SZLBD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2150 of 2007 |
| Judgment of: | Orchiston FM |
| Hearing date: | 10 December 2007 |
| Date of last submission: | 10 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 February 2008 |
REPRESENTATION
| Applicant appeared in person |
| Solicitors for the Respondent: | Clayton Utz |
THE COURT ORDERS THAT:
The proceeding before this Court, commenced by way of application filed on 11 July 2007, is dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $3,950.00 payable within 4 months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2150 OF 2007
| SZLBD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
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), as amended, (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 10 May 2007 and notified to the applicant by letter dated 5 June 2007 which affirmed the decision of the delegate of the respondent Minister (“the delegate”) to refuse to grant a protection visa to the applicant.
Background
The applicant was born on 20 May 1972 and was aged 36 years at the time of his application for a protection visa. He claims to be a national of the People's Republic of China ("PRC").
The applicant arrived in Australia on 26 September 2006 on a PRC passport issued in his own name, holding a subclass UL-459 Sponsored Business Visitor (Short Stay) visa.
The applicant lodged an application for a protection visa on 8 November 2006. In his statement dated 1 November 2006 enclosed with his application, the applicant claimed that because of his involvement in Falun Gong he could no longer stay in China due to the risks to his life and that, under an arrangement with friends, he obtained his passport and visa to come to Australia (Court Book (CB) 34-35)
On the 18 November 2006, the delegate refused to grant the applicant’s protection visa on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
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 (“the Convention”).
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 particular 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 the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceedings
On 21 December 2006 the applicant applied to the Tribunal for review of the delegate’s decision (CB 42-45).
In response to the Tribunal’s letter of invitation of 18 January 2007 (CB 50-51), the applicant appeared before the Tribunal on 21 February 2007 to give oral evidence and present arguments, with the assistance of a Mandarin interpreter,
On both 7 March 2007, and 10 April 2007, the Tribunal sent letters to the applicant, pursuant to s 424A, setting out particular information that the Tribunal considered would be the reason, or part of the reason, for deciding that the applicant is not entitled to a protection visa and inviting him to comment on that information and provide further information (CB 60-64).
The applicant’s claims and evidence (CB 68 -77)
The Tribunal summarised the applicant’s claims in the protection visa application (CB 68). It further summarised the applicant’s claims at the Tribunal hearing (CB 69-72), including that:
·he fears persecution in the PRC because he fears being harassed and persecuted by the Public Security Bureau ("PSB")
·he was persecuted because he issued a travel certificate to Mr Jim Dong Wang, a Falun Gong practitioner, who then used the certificate to enable him to travel to, and enter, Beijing, where he set himself on fire
·after the self-immolation, the PSB investigated who issued the travel certificate to Mr Wang, located the applicant, and detained him
·he was detained for 2 days, fined, lost his job, and has not since been permitted to work
·he was ordered to attend the police station once per month
·he is afraid of what might happen to him if he were to return to the PRC, as he left secretly and has not reported to the police since leaving the PRC.
The Tribunal’s findings and reasons (CB 77 – 81)
I accept that the first respondent has accurately summarised the Tribunal’s findings and reasons as follows:
·the Tribunal did not find the applicant's refugee claims to be credible
·the Tribunal did not accept that the applicant had in fact issued a certificate to Mr Wang, which in turn led to the applicant being detained by the PSB, losing his job and being required to report to the local police on a monthly basis
·the Tribunal found, based on country information, that individuals did not need certificates to travel within the PRC. The Tribunal was not satisfied on the basis of the available evidence that Mr Wang needed a certificate to travel to, and enter, Beijing
·in relation to the applicant's claim that he feared persecution for failing to report to the police on a monthly basis, the Tribunal was not satisfied that the applicant was required to report to the police as alleged
·the Tribunal also found, based on inconsistent evidence before it, regarding the applicant’s claim that he had no contact since his arrival in Australia with two named males (and which went unexplained by him despite the Tribunal issuing the two 424A letters), that it was not satisfied that the applicant came to Australia in the secretive circumstances as claimed.
For these reasons the Tribunal found that there was not a real chance that the applicant would be subjected to serious harm amounting to persecution if he returned to the PRC. The Tribunal was therefore not satisfied that the applicant has a well-founded fear of prosecution, and affirmed the delegate's decision.
The proceedings before this Court
The applicant filed the application in this Court on 11 July 2007 setting out one ground for review of the Tribunal’s decision.
The applicant appeared in person before the Court on 10 December 2007 with the assistance of a Mandarin interpreter. Mr Cleary appeared for the first respondent.
The Court invited the applicant to say anything he wished to in regard to the ground, and generally. The ground was translated for the applicant, prior to his being invited to say anything on it.
Ground of application
The sole ground of the application is that:
The Tribunal committed jurisdictional errors of law in that it denied the applicant procedural fairness
Procedural fairness principles
It is important to note at the outset, that the applicant has not provided any particulars to explain how the Tribunal may have denied him procedural fairness. Further, no evidence by way of the transcript of the Tribunal proceedings has been put before the Court by the applicant on the point. The applicant also did not file any written submissions to elaborate on this ground of review. Nonetheless, given that the applicant was unrepresented in these proceedings, the Court has considered the assertion by the applicant in terms of the statutory requirements of procedural fairness under Part 7 Division 4 of the Act.
In this regard, the High Court in SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63, 231 ALR 592, at [26] noted that:
It has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires.
The applicant is not entitled to common law procedural fairness, given s.422B(1) of the Act, which provides that:
This Division [Division 4 of Part 7 of the Act] is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters to be dealt with.
Section 425 and s.424A set out particular procedural fairness obligations of the Tribunal. The remaining sections of Division 4 set out various additional mandatory and discretionary procedural steps for the Tribunal to take in conducting a hearing, including various ways open to the Tribunal to obtain information.
Procedural fairness requirements (whether in statute or at common law) deal with the process of decision-making, not the merits of the decision. As indicated by the High Court in SZBEL:
what is required by procedural fairness is a fair hearing, not a fair outcome….. It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes, not its actual decision. [at 25]
This limitation on the procedural fairness requirements referred to in SZBEL is consistent with case law that it is not part of the function of this Court to engage in fact finding concerning the merits of an applicant’s case: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at [558], NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]. There is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1998) 197 CLR 510 at 560 [137].
Also, as observed by the High Court in SZBEL, procedural fairness does not require the Tribunal to disclose its mental processes in reaching its decision:
the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision……Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment. [at 48]
The invitation to attend the Tribunal hearing
The invitation by the Tribunal to the applicant to appear before the Tribunal, issued on 18 January 2007 (CB 50-51):
·informed the applicant that the Tribunal was unable to make a decision in his favour on the information before it, and invited him to attend a hearing in order to submit further evidence in support of his claims: s.426(1)
·provided the applicant with notice of the specified day, time and place at which the applicant was scheduled to appear (21 February 2007): s.425A(1);
·was sent to the applicant by post to the last address for service nominated by the applicant: s.441A(4)(c)(i);
·provided a period of notice to the applicant that complied with the prescribed period of 14 days: Regulation 4.35D of the Migration Regulations 1994 (Cth) , and
·informed the applicant of the options available to the Tribunal if he failed to appear at the scheduled hearing: s.426A
Taking each of these statutory requirements into account, I consider that the Tribunal invitation complied with Part 7 Division 4 of the Act, and elsewhere, regarding the content of the invitation.
Section 425(1)
Section 425(1) requires the Tribunal to give the applicant the opportunity to attend the Tribunal hearing, to give evidence and present arguments relating to ‘the issues arising in relation to the decision under review’.
The requirements of s.425(1) were considered by the High Court in SZBEL, at [33]-[48]. It held that the Tribunal must first identify to the applicant the issues under review. In that context the High Court stated that:
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant [at 35].
And further:
…..unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision [at 36].
The High Court also observed that some issues may be obvious and not require that they be specifically identified:
First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor [at 47].
Having identified the issues, the Tribunal must then give the applicant the opportunity to attend a hearing, to give evidence and present arguments relating to the determinative issues. In SZBEL, the High Court concluded that in the case before it:
The Tribunal did not accord the appellant procedural fairness. The Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review [at 44].
Applying the principles in SZBEL to the present case, the Court must consider whether the Tribunal complied with the procedural fairness requirements of s 425(1) by:
·either itself and/or the delegate, identifying to the applicant the determinative issues under review, and
·giving the applicant a sufficient opportunity to give evidence, and to make submissions, about these determinative issues
before it reached its conclusions in relation to the decision of the delegate under review.
I am satisfied that the applicant would clearly have been put on notice from the delegate’s reasons for decision that one determinative issue for the Tribunal was the credibility of his claims that he was an active member of the Falun Gong movement since 1994 and that, in consequence, he was actively being sought by Chinese authorities, and that he feared persecution. Indeed this issue was the subject of specific evidence at the Tribunal hearing when the applicant appeared to retract his earlier claims before the delegate and told the Tribunal that he had never been a Falun Gong practitioner (CB at 78).
The applicant would also clearly have been put on notice (from the two s.424A letters (CB 60-64), and from the summary of the questions asked of, and the evidence given by, the applicant at the hearing (CB 68-74)), that the other determinative issues in this case concerned the assertions by the applicant regarding his issuing of a travel certificate to Mr Wang; whether such a certificate was necessary for Mr Wang to travel to Beijing; his alleged identification and persecution by the PSB in consequence of the actions of Mr Wang; his consequential on-going dealings with the local Chinese police; and whether the applicant came to Australia in the secretive circumstances that he claimed.
I am also satisfied, (taking into account the two s.424A letters, with the invitations to comment on information referred to in those letters and/or provide further information, and from the summary in the Tribunal decision record of the questions asked of, and the evidence given by, the applicant at the Tribunal hearing), that the Tribunal gave the applicant a sufficient opportunity to give evidence, and to make submissions, about each of these determinative issues.
It is also apparent from the s.424A letters and the decision record that the Tribunal clearly identified to the applicant that his credibility on each of the issues was important in its determination of his claims. It further put to the applicant in the two s.424A letters, the particulars of the material inconsistencies that are referred to in the Tribunal's subsequent findings and reasons (although it would seem that the Tribunal was not required to do so: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18], see post. The applicant chose not to respond to either of the s.424A letters.
Section 424A
Section 424A(1) requires the Tribunal, prior to making its decision:
· to give an applicant, in the way that the Tribunal considers appropriate, "clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review"
· to ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review, and
· to invite the applicant to comment on or respond to it.
The provision only applies to "information". This concept covers only evidentiary material or documentation, not the Tribunal's subjective appraisals, thought processes or determinations. As observed by the High Court in SZBYR at [18]:
… if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para(a) of s.424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellant’s evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration & Multicultural & Indigenous Affairs that the word “information”
does not encompass the Tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
In regard to the information falling within s.424A(1), I am satisfied that the Tribunal in the two s.424A letters:
·gave the applicant clear particulars of the information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision that is under review, including information relating to whether it was necessary to obtain a certificate to travel to Beijing and information relating to whether the applicant in fact issued a certificate to Mr Wang
·clearly stated that the information was relevant to the review, and that it may lead the tribunal to affirm the decision that was under review, and
·invited the applicant to comment on or respond to it.
In any event, the Tribunal was not required to put to the applicant country information upon which it relied: s.424A(3)(a); nor was it required to put to the applicant information that “the applicant gave for the purpose of the application for review”: s.424A(3)(b). These important statutory exceptions to s.424A(1) are clearly relevant in the present context to the information which the Tribunal was bound to put to the applicant.
The applicant did not respond to either letter. As provided under s.424C(2), the Tribunal was entitled to make a decision on the review without taking any further action to obtain the applicant's views on the information.
I am therefore satisfied that there has been no breach of s.425(1) or s.424A of the Act. Overall, I detect no irregularity or unfairness in the procedure adopted by the Tribunal in its review of the applicant’s case. I consider that the Tribunal accorded the applicant procedural fairness in accordance with the statutory framework.
Conclusion
The Court finds that the Tribunal fully complied with procedural fairness requirements in Division 4 of Part 7 of the Act in reaching its conclusion that the applicant was not a person to whom Australia has protection obligations under the Refugees Convention and that therefore the applicant does not satisfy the criterion set out in s 36(2) for a protection visa.
The application before this Court is dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate:
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