SZLDC v Minister for Immigration
[2008] FMCA 588
•12 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLDC v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 588 |
| MIGRATION – Review of decision of Refugee Review Tribunal – Whether jurisdictional error – Application for Protection (Class XA) visa – over 7 year delay in seeking judicial review – whether jurisdiction to hear review application – whether “actual (as opposed to deemed) notification” of the Tribunal decision pursuant to s.477 of the Act – whether breach of s.424A of the Act – merits review not the function of judicial review. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 417, 424A, 441A, 474, 477 |
| Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 Abebe v Commonwealth (1998) 197 CLR 510 |
| Applicant: | SZLDC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2356 of 2007 |
| Judgment of: | Orchiston FM |
| Hearing date: | 26 February 2008 |
| Date of last submission: | 26 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 12 May 2008 |
REPRESENTATION
| Applicant appeared in person |
| Counsel for the Respondent: | Mr T. Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application filed on 31 July 2007 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $4,600 payable within five (5) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2356 of 2007
| SZLDC |
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) handed down on 27 March 2000 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a Protection (Class XA) visa to the applicant.
Background
The applicant was born on 29 March 1969.
The applicant claims to be a national of China, of Han ethnicity, and of Christian faith.
The applicant arrived in Australia on 3 July 1999 on a forged British National (overseas) passport issued in a false name, holding a visitor’s visa, which was valid until 3 October 1999.
The applicant lodged an application for a protection visa on 13 August 1999 on the basis that she has been arrested and persecuted in China due to her membership of the Shouting Church. Many members of her church have been arrested in China and the applicant is regarded as a “criminal at large”.
On 19 October 1999 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).
On 4 November 1999 the applicant applied to the Tribunal for review of the delegate’s decision (Court Book (CB) 42–51).
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 3 February 2000, the Tribunal sent a letter to the applicant inviting her to appear before it to give oral evidence and present arguments (CB 52–53).
The applicant’s claims and evidence (CB 71–74)
The Tribunal summarised the applicant’s claims in the protection visa application. It further summarised the applicant’s claims at the Tribunal hearing, including that:
·the applicant claims to be a citizen of China and a member of a banned Christian group known as “the Shouters” or “Hu Han Pai”
·she and her husband had been the leaders of the Shouters’ sect in their village
·she was arrested for her involvement with the Shouters in February 1996 and released in January 1997
·her passport shows she travelled to Japan in April 1997
·she has a husband and child still living in China. She claims that they were forced to flee to a mountainous province to avoid arrest by the police
·in her primary application the applicant stated that she kept in contact with her family by telephone and letters but later denied this at the Tribunal hearing and said she had heard news about her family through a friend in Australia.
In regard to her religious activities in Australia, the Tribunal concluded that:
she was so vague as to attract serious scepticism regarding her devotion and leadership qualities: she could not name precisely where her congregation met in Sydney; she claimed she did not know because she was usually taken to the “church” by friends who had been part of her congregation back in the village, which amounted to an assertion to the effect that she now followed quite blindly those whom she had previously led; and addressing the fact that she had been unable to distinguish the Shouters from other Christian sects in her DIMA interview, she said she had not dared to do so for fear of details of that interview “leaking” back to the PRC. All of this evidence was deeply unsatisfactory, in particular the last response, bearing in mind that the Applicant claimed to be known already as a Shouter back home, and bearing in mind that, in any event, she had already declared herself both a Shouter and a leader of Shouters in her primary application.
The Tribunal’s findings and reasons (Court Book (CB) 74–75)
The Tribunal made the following relevant findings:
… an examination of the applicant’s passport revealed quite an uninterrupted history of travel amongst a number of Asian countries since around 1996: Singapore, Malaysia, Japan and Thailand. It is inconceivable that the applicant could have done this on a PRC farmer’s income, or even a PRC farmer’s life saving … her behaviour is entirely inconsistent with the notion of a female religious leader escaping arrest in one country and fleeing for asylum in another. Noting that there was a major crackdown on the Shouters in 1993 and 1994, it is incongruous that the Applicant only departed the PRC temporarily, evidently returning there before coming to Australia. It is also incongruous that she did not seek asylum in Japan when she had the chance. The map covered by her passport stamps indicates some kind of demand-driven itinerary, and not at all one that was initiated by a single, significant “push” episode.
… the Tribunal does not accept that the Applicant or her family are on the run from the PRC authorities, let alone for the reasons she claims.
The claims about the hut or huts are sufficient example of a tendency on the Applicant’s part to alter her evidence significantly in the face of adverse information.
The Tribunal accepts that, posing as the person named in her travel document, the Applicant was in Japan in April 1996 and not in a PRC prison, let alone for the reason she claims to have been detained. It thus finds that the bulk of her relevant claims in this application are false.
The Applicant did not satisfy the Tribunal that she has ever been a member of the Shouters’ cult, let alone one of its leaders. As the Tribunal has shown, the Applicant’s evidence about her involvement with the cult is highly inconsistent. In the Tribunal’s mind, the Applicant’s travel history also rules out any possibility that she could have maintained a leadership position in any social movement prior to coming here in 1999.
The Tribunal notes that the primary decision in this matter placed the Applicant on notice as to the importance of knowing details about the Shouters and their uniqueness. The fact that she did so little “homework” in the intervening six months indicates that the success or failure of the present application were factors of less importance to the Applicant than some other factor, were it the amount of time in Australia she might be able to “buy” in Australia, as it were, or something else.
The Tribunal concludes that the Applicant is a highly unreliable witness in the present matter. It is not satisfied that she faces a real chance of Convention-related persecution in the PRC. She is not a refugee.
The proceedings before this Court
The applicant filed the application in this Court on 31 July 2007 setting out 2 grounds for review of the Tribunal’s decision.
The applicant appeared in person before the Court on 26 February 2008 with the assistance of a Mandarin interpreter. Mr Reilly of counsel appeared for the first respondent.
The Court invited the applicant to say anything she wished to in regard to each ground and generally. Each of the grounds was translated for the applicant, prior to her being invited to say anything on each.
Jurisdictional issue
The threshold question arises as to whether this Court has jurisdiction to entertain the application. The present application before this Court was filed some 7 years and 3 months after the Tribunal handed down its decision on 11 April 2000.
Section 430(1) of the Act provides that:
Refugee Review Tribunal to record its decisions etc.
(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.
Section 430B(6) sets out the time limits in which the Tribunal's written statement must be served on the applicant:
(6) If the applicant is not present at the handing down of the decision, the Tribunal must notify the applicant of the decision by giving the applicant a copy of the statement prepared under subsection 430(1). The copy must be given to the applicant:
(a) within 14 days after the day on which the decision is handed down; and
(b) by one of the methods specified in section 441A.
Section 477 of the Act sets out the time limits within which an application must be made to the Federal Magistrates Court following notification of the decision:
Time limits on applications to the Federal Magistrates Court
(1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision. [emphasis added]
(2) The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:
(a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and
(b) the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.
(3) Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.
(4) The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.
The proper construction of the words “within 28 days of the actual (as opposed to deemed) notification of the decision” in s.477, have been the subject of recent authority by the Full Federal Court in Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105 (12 July 2007). The Full Court held that:
It follows that, otherwise than where the applicant appears at the handing down of the decision, the only means of the Tribunal satisfying the notification requirement in s 477(1) is if it engages staff or process servers to personally serve the decision statement upon an applicant (per Gyles J at [1]);
and that:
Apart from delivery by hand, each of the other methods of delivery permitted by s 441A depends upon the operation of the corresponding deeming provision in s 441C in order to have practical effect. Leaving a document with someone else, dispatching it by some pre-paid means or sending it electronically are incomplete methods of physical delivery to an applicant (per Buchanan J at [34]).
The Full Court concluded, at [37], that:
……the sole method of actual (as opposed to deemed) notification of the written statement, required by s 430(1) to be prepared by the RRT, which is provided by the Act, is delivery by hand. Such a result (although it is reached by consideration of the current provisions in Part 7 of the Act) accords with the outcome in WACB and the emphasis, in the passages earlier quoted, on physical delivery.
The Full Court then considered whether, in every case, it is the applicant, as opposed to an authorised recipient, who must be personally given the Tribunal's written statement. It concluded, at [49], that:
For the purposes of s 477 actual notification to an applicant of a decision of the RRT must be accomplished by physical delivery of a written statement prepared by the RRT in accordance with s 430(1) to the applicant personally.
Notification to the authorised recipient does not therefore suffice.
Whilst I am aware that the High Court has granted special leave to the Minister to appeal the Full Court decision in SZKKC, this Court is bound to apply the existing law as it now stands and follow the Full Court decision.
In the present case, the applicant was not present at the handing down of the Tribunal decision. The question is therefore whether, and if so when, she was personally served by hand with the Tribunal decision.
The applicant’s oral evidence
The applicant gave oral evidence to this Court concerning when she received the Tribunal decision and her explanation for the delay in her filing the present application for judicial review by this Court, as follows:
·that she received the Tribunal decision in April 2007 (transcript, 26/2/08, p.6) and that prior to this, she did not know that the Tribunal had rejected her application (p.11)
·she had been waiting 7 years for her migration agent to notify her of the outcome of the Tribunal hearing (p.6)
·in the beginning, she called her migration agent once every 1 to 2 weeks, then once every 1 to 2 months (p.7), then an interval of 6 months (p.11)
·her migration agent told her “to wait for letter, so I waited” (p.11)
·in 2000, and subsequently, she moved her place of residence but her migration agent told her there was no need to tell the Department her new address as the letter [the Tribunal decision] would be sent to her (p.12)
·it was only in 2007, with the assistance of a friend, who said that it should not have taken so long, that she asked the friend to find out the information (pp.6, 13)
·she did not think it was strange that she had not got the Tribunal decision in the 7 year period (p.14). Both God and her migration agent had told her to wait and so she waited “in earnest for good news” (p.14)
·she denied that she knew in 2000 that the Tribunal had refused her applications - and that she had moved address and did not inform the Department in order to remain in Australia unlawfully and undetected (p.14)
·she agreed that her migration agent helped her prepare the s.417 letter to the Minister dated 9 May 2000 (Exhibit 1, incomplete copy of the s.417 letter) seeking the Minister substitute a decision more favourable to the applicant than the Tribunal decision.
Findings on the applicant’s evidence
I do not accept the applicant as a witness of truth on these matters. I found her explanation as to why she had waited so long before personally seeking to know the outcome of her review application to the Tribunal to be not only highly implausible but inconsistent with her own evidence that she knew about, and was involved with her migration agent in drafting the s.417 letter to the Minister (the s.417 letter) from which the Court is entitled to infer that she must, ipso facto, have known that her Tribunal application had been unsuccessful. I am satisfied therefore that she knew as early as May 2000 that her application for review by the Tribunal had been refused and must have had some knowledge of the contents of the decision to be able to be involved in the drafting of the s.417 letter.
I further consider that the Court can draw the inference that the applicant knowingly moved premises on at least three occasions and knowingly remained in Australia for over 7 years in order to avoid detection and for the purpose of extending her unlawful stay in Australia.
Having so found, I consider that the Court has nonetheless jurisdiction to hear the case in view of the Full Court’s decision in SZKKC. The applicant was neither present at the handing down of the Tribunal decision in 11 April 2000 (and therefore did not receive it by hand at that point); nor does it suffice for her migration agent to have been provided with the decision.
Furthermore, I do not consider, as the first respondent suggests, that the fact that the applicant acknowledges in both her affidavit and her written submissions (filed on 1 July 2007 and 19 February 2008, respectively) that she received the Tribunal decision on 30 April 2007 (CB 79) pursuant to her letter of request to it of 1 April 2007 (CB 78), takes the case outside the “deemed” notification provision of s441A(4) of the Act and the clear statement of the law in SZKKC.
I am not prepared to conclude from these circumstances that the applicant was provided with “actual” notification of the Tribunal decision just because the decision was dispatched by post to her in response to her personal request and where she had nominated her address for service.
Merely because she requested a copy of the decision, provided the address to the Tribunal where it should be sent, and acknowledged that she received it, does not amount, in my view, to personal service by hand delivery to the applicant in the SZKKC sense. As stated by Buchanan J at [34], dispatching the decision by some prepaid means is an “incomplete” method of physical delivery to an applicant. And further at [38] that dispatch by prepaid post is a deeming provision. I do not consider that the present circumstances can be distinguished from, or fall outside s.441A(4) and the clear reasoning of the Full Court in SZKKC.
Until such times as the applicant was notified in the manner spelt out in SZKKC in accordance with the provisions of the Act, it cannot be said that s.477 is enlivened and that time begins to run for the purposes of lodgement of her application for judicial review by this Court.
On one view, it would seen incongruous that the applicant can choose not to turn up to the handing down of the Tribunal decision; consent to her authorised recipient receiving the decision on her behalf which he did; seek unsuccessfully a more favourable decision from the Minister (the s.417 letter); move premises on several occasions without notifying the Department to avoid detection; not attempt to prosecute any judicial review to this Court for over 7 years; wait a further 92 days before filing the application for judicial review after admitting to having received it (that is, even beyond the statutory maximum period of 86 days in s.477 in a case where leave has been sought and granted to extend the 28 days for filing); yet still be entitled to lodge an application with this Court for review merely because she did not receive the Tribunal decision in her hand and hence time had not commenced to run for the purposes of s.477.
However, until the outcome of the High Court appeal in SZKKC, or any legislative amendment to s.477, I am bound to apply the law as it stands. I conclude that for the purposes of s.477, the applicant has not received to date “actual” as opposed to deemed notification of the Tribunal decision. Accordingly, the Court has jurisdiction to hear the matter.
Grounds of application
The grounds of the application are:
(1)The second respondent has failed to comply with s.424A of the Act, and thereby committed jurisdictional error of law.
(2)Section 424A(1) of the Migration Act imposes a duty on the Tribunal to offer the applicant the chance to comment in writing. After the hearing on information relevant to a potential adverse decision on review subject to the exclusions list in s.424A(3). It is clear the RRT did not provide that opportunity.
Ground 1 of the application.
Both grounds 1 and 2 raise the same issue concerning whether the Tribunal failed to provide the applicant with an opportunity to comment on potentially adverse information pursuant to s.424A of the Act. They can therefore be conveniently dealt with together.
The applicant provides no particulars to identify what “information” she alleges falls within s.424A on which she asserts she has not been given the opportunity to comment.
Section 424A requires the Tribunal to give an applicant clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision of the delegate that is under review; to draw the relevance of that information clearly to the attention of the applicant; and to give the applicant an opportunity to comment on or respond to the information, before any decision is made by a Tribunal.
It is clear that a proper construction of the word information in s.424A(1) does not extend to the Tribunal’s subjective appraisals, thought processes or determinations on the evidence, including its disbelief of the applicant’s evidence and the implausibility of her claims. As recently observed by the High Court in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 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. (and see SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62 at [5] (and cases cited therein); SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63, 231 ALR 592 at [48]).
In the present case, the credibility and plausibility of the applicant’s evidence was equally at the forefront of the Tribunal’s thought processes. The Tribunal rejected the applicant’s material claims based on its findings that the applicant lacked credibility and reliability, in particular given the inconsistencies in her claims. I therefore detect no breach of s.424A of the Act. I am satisfied that the applicant was accorded procedural fairness by the Tribunal in accordance with the statutory framework of the Act.
I am further satisfied that the Tribunal’s adverse finding as to the applicant’s credibility was reasonably open to it on all the evidence before it. The Tribunal’s conclusion in this regard was a finding of fact par excellence, not open to review by this Court:
If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 at [67] (and see 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]).
Merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion in this case does not amount to an error of law. Furthermore, 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]
Accordingly, for the reasons stated above, Grounds 1 and 2 of the application are rejected.
It is not necessary therefore for the Court to consider the first respondent’s submissions that, in the exercise of its discretion, it should refuse the relief sought due to “unwarranted delay” on the part of the applicant.
Conclusion
The Court finds that 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 application before this Court is dismissed.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 12 May 2008
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