SZLGB v Minister for Immigration
[2008] FMCA 332
•17 March 2008
EDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLGB v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 332 |
| MIGRATION – Review of RRT decision - whether breach of s.424A Migration Act 1958 – report of interview with Migration Department officer – whether information was the ‘reason, or part of the reason’ for affirming the decision under review – whether Tribunal put specific aspects of applicant’s account to applicant – whether compliance with s.425. |
| Migration Act 1958, ss.424A, 425 |
| SZDPY v Minister for Immigration [2006] FCA 627 SZBYR v Minister for Immigration [2007] HCA 26 SZFDE v Minister for Immigration [2007] HCA 35 SZBEL v Minister for Immigration [2006] HCA 63 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | SZLGB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2670 of 2007 |
| Judgment of: | Raphael FM |
| Hearing date: | 3 March 2008 |
| Date of Last Submission: | 3 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 17 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr I Archibald |
| Solicitors for the Applicant: | Michaela Byers |
| Counsel for the Respondents: | Ms S Sirtes |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
A writ of certiorari issue directed to the Refugee Review Tribunal removing into this Court to be quashed the decision of the Tribunal made on 23 July 2007 and handed down on 2 August 2007.
A writ of prohibition be directed to the first respondent restraining the first respondent from acting upon, or giving effect to, or proceeding further on the basis of the Tribunal’s decision.
A writ of mandamus be directed to the second respondent directing it to reconsider and determine the matter according to law.
The first respondent to pay the applicant’s costs assessed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2670 of 2007
| SZLGB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China. He arrived in Australia on 23 December 2006. He applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 30 January 2007. On 15 March 2007 a delegate of the Minister declined to grant him a protection visa. On 20 April 2007 the applicant applied for review of that decision by the Refugee Review Tribunal. The applicant attended a hearing of the Tribunal on 28 May 2007. On 29 May 2007 the Tribunal wrote to the applicant a letter pursuant to s.424A of the Migration Act 1958 (the “Act”) inviting him to comment on information that would, subject to any comments he did make, be the reason or part of the reason for deciding that he was not entitled to a protection visa. The applicant responded to the letter on 8 June 2007. On 2 August 2007 the Tribunal handed down its decision affirming the decision not to grant a protection visa.
The ground upon which the applicant claimed he was a person to whom Australia owed protection obligations was that of religion/membership of a particular social group, the applicant being an adherent of Falun Gong. He first became involved in Falun Gong in January 1999 where he took it up for medical reasons. He claims that in 2000 he and ten others were taken to a local police station and were forced to sign undertakings to stop practising Falun Gong. He did sign and refrained from further practice until 2006. In that year a friend of his father’s visited his home town from Taiwan. He brought with him the book “Nine Commentaries on the Communist Party” which the applicant borrowed from him. He read the book and made a copy of it. The applicant claimed that the police heard that the book was circulating and questioned the friend. The friend claimed that he did not tell the police about the applicant but notwithstanding this the police raided the applicant’s home and searched for the book. They did not find it. The applicant claims that he was beaten up and lost the business registration for his cement business. The police took no further action against him, but because he was worried that he might be the subject of further police investigation and imprisonment he arranged with a people smuggler to be taken to Australia. He travelled via Shenzhen in a vessel. He was deposited somewhere in Australia, picked up and taken to Chinatown where he found a Falun Gong practitioner who assisted him. He did not travel with his own passport but merely his identity card. His family paid the people smuggler upon being advised of his arrival in Sydney. The applicant attended Falun Gong sessions at Campsie even though he actually lived in Auburn and there was a Falun Gong practice session nearer to his home. The applicant was photographed taking part in anti-PRC demonstrations on two occasions.
In the course of the Tribunal’s enquiries it discussed with him his travel to Australia. It makes reference to this at three different points in the record of decision. At [CB 103] the following paragraph appears:
“The applicant described aspects of his journey to Australia and his arrival in Sydney’s Chinatown. He carried with him just his clothes, $A2,000 and his ID card. The applicant had no other information about the trip or the traffickers he had engaged. For instance, he did not know where he arrived in Sydney, only that an unknown person met him immediately upon his arrival at port and took him by car to Chinatown. The applicant then approached a person who was from his home area, and this person took him to accommodation in Auburn where the applicant now lives. He shares an apartment with other people from Fuqing.”
At [CB 106]:
“At the end of the hearing, the applicant said that he left China because he had no other options. He highlighted the closure of the factory and the authorities’ continued approaches to his family as indicators that he continued to face a well-founded fear of persecution. The Tribunal undertook to reflect on all these aspects. It advised the applicant that it had concerns about several aspects of his evidence, including the lack of information about his travel to Australia, the anomalies concerning his experiences with CFC, and his very limited exposure to Falun Gong.”
In its findings and reasons the Tribunal said at [108]:
“The Tribunal found the applicant to be a witness of generally low credibility. On several key issues, he appeared to have learned the key aspects of his claims, but struggled to provide further details.
The applicant was particularly evasive concerning the details of his departure from China in December 2006 until his arrival in Sydney’s Chinatown. The Tribunal accepts that an applicant who has engaged the services of people smugglers may be reluctant to reveal information about those persons or their operations. However, the applicant’s reticence went well beyond any such concern. For instance, he attributed to the people smugglers his ability to depart China allegedly using only an ID card. He also had no meaningful details concerning his arrival in Australia. These issues are significant because the applicant implies that his lack of documentation and the circumstances of his departure from China are consistent with his claim to fear persecution in China. The Tribunal finds that the applicant’s evidence regarding his travel and documentation is unreliable. It finds that the applicant’s assertions in this regard shed no light on his refugee claims.”
The applicant has provided the court with a transcript. At page 6 of the transcript the Tribunal asked the applicant about where he is living and on finding that he is living with a group of people asks how he met them. The applicant tells that he met them through a friend and gives the name.
T: Is he the man who brought you to Australia?
A: No.
T: Who is he then?
A: It’s a stranger.
T:You told me it was a friend so I want to know which friend? Tell me about [friend] please?
A: I got to know [friend] after I arrived in Australia.
T: Continue.
A: I was brought to Australia by a trafficker through user ship.
T:We will come to that in a moment. I am asking about [friend]. Where do you know [friend] from?
A: Chinatown.
T: Specific please?
A: Near China, the Bank of China.
T:Continue.
A:That day I came to Australia and then I asked him some questions because I have no friends, no relatives here and I saw him that day.
T: How did you get to Chinatown then?
A: The trafficker took me there.
T:Did your trafficker travel with you to Australia?
A:Actually I didn’t see the trafficker but I met with the person who came to pick me up.
T: Where did that person pick you up from?
A: I don’t know.
T: Who was the person who picked you up?
A: Is Asian guy.
T:I will ask again. Who was the person who picked you up?
A:The person who brought me to Australia is a person whose face is like Asian person.
T:I will ask again. Who is the person who picked you up at Sydney on your arrival in Australia and took you to Chinatown?
A: It’s a stranger.
T:Do you remember any more details, apart from – you have essentially told, as I have seen your interview with the Department, you have essentially told the Department that you know nothing. Do you remember any detail apart from that? We will move on from that otherwise but do you remember any more details? [emphasis added]
A: Actually I didn’t know anything when I was on board.
T:You must have know something for your family, presumably there was some money involved, you must have known who you were giving money to or who you had to give money to after your arrival?
A:We paid the money in China.
T:We will leave that there. There is a lack of detail that you have provided. I don’t know that this card is genuine. I don’t know that any of these other things are any more reliable that all of the things that you now can’t remember so I will have to reflect on the things you are about to tell me I think. I made that comment because I am gaining the impression that you are not trying very hard to enlighten me about your circumstances.
Let’s move on. Now, you mention that your wife is in China still taking care of your two children, is that correct?
A:Yes.”
The “Interview with the Department” is not referred to in the Tribunal’s decision. The document itself does not appear in the Court Book. A subpoena was issued against the Department and the document (Exhibit 1) was produced. The document reads as follows:
“I asked [applicant] when he arrived to Australia, he stated 23/12/2006 by boat. He could not remember which port he arrived at. He stated he was smuggled into Australia and paid 210,000 Chinese RMB which he thinks equates to approximately AUD$35,000.00. The boat departed from Chen Zhen in China and it felt like it ‘took a long time’ to arrive to Australia. He could not tell me whether the boat had stopped anywhere between China and Australia. He stated that he was introduced to the people smugglers by a friend in China and it was agreed that he would pay them the money on arrival to Australia, the funds were to be deposited into a bank account in Australia. He provided the name [given] as the person’s name which the money was deposited into but there are no records as it was a cash deposit.
He was taken onto the boat by a man of Asian appearance, he did not speak with anyone so does not know the nationality of the crew onboard. He was held in a small box underneath the boat and was not allowed out of the box at anytime. He was given food and water, however did not speak with anyone or see anyone else around him. He felt that the boat was medium sized and did not see, smell or hear anything that could verify what type of boat it was. He was ‘not allowed to see’ anything. He does not know the name of the boat or what they were carrying onboard.
When he arrived in Australia, he was taken to shore on a small boat by the driver. He noticed that the port had a lot of industry lights and it was night time. He did not notice any other boats near the shore. Once onshore, another person drove him to Sydney. The drive took between 1 and 2 hours and was via ‘freeway and some windy roads.’ He sat in the car for the entire trip however he did not speak with this person. The person was also of Asian appearance. Once they arrived to Sydney, he was dropped off at Chinatown in the City and the driver took off. This arrangement to be brought to Sydney was included within the payment.
The applicant was unable to provide any further information regarding the vessel he arrived to Australia on. However he advised that if he things of anything that would assist the Department he would contact me.”
The applicant argues that the Tribunal fell into jurisdictional error because the interview document was information that was required to be provided to the applicant pursuant to the provisions of s.424A(1) of the Act. Section 424A is explained by Kenny J in SZDPY v Minister for Immigration [2006] FCA 627 at [28] and [29]:
“[28] Section 424A of the Act requires the Tribunal to give the applicant, in the way the Tribunal considers appropriate, particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review, to ensure, as far as reasonably practicable, that the applicant understands why it is relevant, and to invite the applicant to comment on it: s 424A(1). The information and invitation must be given by a prescribed method: s 424A(2). Section 424A does not apply to certain kinds of information, being information that is not specifically about an applicant and is just about a class of persons, or information that the applicant gave for the purpose of the application, or non-disclosable information: s 424A(3).
[29] The Court in SZEEU accepted that the word ‘information’ in s 424A refers to "knowledge of relevant facts or circumstances communicated to or received by the Tribunal": see SZEEU at [23]-[25] per Moore J, at [94], [157], [171] per Weinberg J and [205] per Allsop J.”
It is clear from the extract from [CB 108] in the Tribunal’s findings and reasons, which is the first finding to be discussed under that heading, that the applicant’s responses to questions concerning the manner in which he left China and arrived in Australia constituted a substantive ground for disbelieving his story and therefore for denying him protection. The Tribunal claims that the applicant was particularly evasive concerning the details of his departure from China. The evidence provided to the Tribunal concerning the applicant’s departure from China is found in his original statement at [CB 27]-[28]:
“Someone introduced a people smuggler known by his nickname [Name], he charged me 200,000 yuan to arrange a travel from China to Australia, because he said he had better connection with Australia. Later he charged me 10,000 extra because I asked him to arrange it as soon as possible. On 9 December 2006, he called me and said it was time to leave. Then I left home with a small bag containing only my underwear, towel, toothbrush and toothpaste. My wife sewed a small pocket on my underwear and I hided [sic] 2000 Australian dollars there. [Name] brought me and another two people to a bus station where we took a coach bus to Shenzhen and arrived there in the next morning. We slept in Shenzhen for one night and then I was sent to a ship very early in the morning on 11 December 2006. [Name] hided [sic] me underneath the ship deck. I was given water and hard bread, and were not allowed to make noise. I was not allowed to come out unless the ship staff removed the cover and let me out. I spent 12 days in darkness. During the 12 days I was very scared. But when I thought I would arrive in a land of freedom if I survived the horrible journey, I did not regret my choice.
I arrived in Sydney 23 December 2006. I was picked up by an unknown person and then taken to an unknown place, where he called [Name] and I called my family to confirm that I was in Sydney, as we have agreed already. Before I called my family I asked the person to convince me where I was. He turned on the TV and brought me to the street where I saw foreigners and cars with Australia car plates. Then I called my family to pay [Name] the money, otherwise he would not let me go free.”
and in the responses to questioning found in the extract from the transcript set out in [5] of these reasons. It will be noted that in the transcript it is not at all clear whether the applicant is being questioned about the arrangements he made in China, the events on board the ship or the disembarkation from the ship and arrival in Sydney. The Tribunal hardly gives the applicant an opportunity to respond, making three references to “moving on”, which indicates that when it came to make a decision upon the evidence it took into account the material contained in the interview with the departmental officers. It is the alleged lack of detail in that document that leads the Tribunal to its conclusion as to the credibility of the applicant’s story.
In SZBYR v Minister for Immigration [2007] HCA 26 the High Court considered a case in which the Tribunal had entered into considerable discourse as to the applicant’s credibility based upon conflict between a statutory declaration that the applicant had provided and oral evidence given before the Tribunal. As it turned out, these discrepancies were of no importance because they had no bearing on the real reasons for decision. That reason was that the fear of persecution claimed by the applicant had no Convention nexus. At [17] the majority opined:
“The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.” Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.”
The court continued at [18]:
“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 the instant case the Tribunal has characterised the “evidence”, which must to my mind include the record of interview, as “evasive”. The record is clearly ‘material or documentation”. It was the alleged failure to achieve a standard of forthrightness (never defined) in the interview as documented that was part of the reason of the decision. Fairness demands that such a document be shown to the applicant. Only if he has the document itself can he point out to the Tribunal that far from being evasive he has named names (surely a risky thing to do and thus more indicative of honesty than of venality), or that he has described a drive that would indicate from the time taken and the description of the freeway and windy roads that he had been dropped at or near Wollongong. The Tribunal indicated to the applicant that its interpretation of the document was that he knew nothing. If he had been given the document he could have disputed that assertion. I am of the view that the document is itself “information.” This would appear to be not only my view, but also that of the Tribunal itself. At [T39] the Tribunal says:
Tribunal Member: It’s my duty to alert you now to some concerns that I have. And that is that I found a significant number of your claims to be very vague and for you not to be very forthcoming with information that I was trying to ask you about. That information included the circumstances of your travel …” [emphasis added].
If I am wrong about my categorisation of the document as information then I believe that the Tribunal failed to allow the applicant to present arguments relating to the issues arising in relation to the decision under review (s.425). It did this in 2 ways. First it raised matters but did not give the applicant an opportunity to respond when it said: “We will leave it there, there is a lack of detail” and “Lets move on”. Notice must be taken of the problems facing an unrepresented litigant who speaks no English, who comes from an authoritarian state and is confronted with a court-like scenario. A Tribunal cannot force an issue, then make adverse findings because such a person does not say “Hold on, I have not had a proper opportunity to explain myself” or “Please show me the document you say indicates I know nothing” and have a Crown representative argue that the applicant has had a meaningful opportunity to present arguments. The significance of the requirement in s.425 was recently highlighted in SZFDE v Minister for Immigration [2007] HCA 35 at [31]-[32], which dealt with the issue of fraud on the part of a migration agent. Of s.425 it was said:
“The importance of the requirement in s 425 that the Tribunal invite the applicant to appear to give evidence and present arguments is emphasised by s 422B. This states that Div 4 "is taken to be an exhaustive statement of the requirement of the natural justice hearing rule in relation to the matters it deals with."
An effective subversion of the operation of s 425 also subverts the observance by the Tribunal of its obligation to accord procedural fairness to applicants for review. Given the significance of procedural fairness for the principles concerned with jurisdictional error, sourced in s 75(v) of the Constitution, the subversion of the processes of the Tribunal in the manner alleged by the present appellants is a matter of the first magnitude in the due administration of Pt 7 of the Act.” [footnotes omitted]The content of the obligation under s.425 was outlined in SZBEL v Minister for Immigration [2006] HCA 63 where the High Court at [47] said:
“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. But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.” [emphasis added]
As outlined in SZBEL, there may be cases where it is sufficiently indicated that everything the applicant says is in issue (at [47]). It is also not necessary for the Tribunal to give an applicant a ‘running commentary’ upon the evidence: SZBEL at [48]. This case, however, falls within the parameters of SZBEL as it was not clearly put to the applicant that these matters required an explanation from him.
13. The second way in which the Tribunal failed to allow the applicant to present arguments was the way in which the Tribunal dealt with the questioning about the people smugglers that resulted in the assessment that “the applicant’s reticence went well beyond any such concern”. It will be seen from the extract from the transcript that when the applicant informed the Tribunal that he was brought to Australia by a trafficker using a ship, the Tribunal responded: “We will come to that in a moment”. There are then some questions about the people smuggler, which appear to be questions about the person who collected the applicant from the vessel in Sydney. There is also the question about paying money which the respondent answered by saying that the money was paid in China. The record of interview document names the person to whom the money was paid in China, but the Tribunal did not refer to that and said: “We will leave it there. There is a lack of detail that you have provided.” By cutting the applicant off in this way the Tribunal prevented him from asking what further detail the Tribunal required.
One of the areas in which the applicant’s reticence is considered is in relation to his attribution to the people smugglers his ability to depart China using only an ID card. The questions asked by the Tribunal in this regard are found at [T40], the last page of the transcript:
Tribunal Member: Mr [Applicant], just before we go, how did you manage in China to get on to the boat without anyone checking your ID?
Applicant: No.
Tribunal Member: How did you manage I’m asking you?
Applicant: Because it is, we are all, they are all traffickers so they didn’t bother to check it.
Tribunal Member: I know you used traffickers. I’m asking how did they manage to smuggle you on to the boat without checking your ID?
Applicant: They only check it’s me.
Tribunal Member: So you had no papers at all?
Applicant: No.
Tribunal Member: Thank you very much. Thank you Miss Interpreter.
I am of the view that the Tribunal failed to ask the applicant to address the particular concern that the Tribunal had with regard to the ID card issue and that led it to come to a view that the applicant was being reticent beyond that which the Tribunal considered to be a normal applicant’s concerns. I do not believe that the concerns that I have raised constitute reading the Tribunal’s decision with an eye too closely attuned to error: see Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at [30] per Brennan CJ, Toohey, McHugh and Gummow JJ. If the interview document does constitute “information” and was therefore required to be sent to the applicant with a letter asking him to comment upon it, then he would have been given an opportunity to expand on the circumstances of his departure from China, travel to Australia and collection from the vessel that so concerned the Tribunal. If the Tribunal had explained to the applicant that the importance of the question about the ID document related not to whether or not the ID was checked (which appears to be the question asked) but to the use of that document alone (and presumably not a passport), then the applicant could have given an explanation. I am of the view that the Tribunal fell into jurisdictional error in the manner in which it carried out its duties in relation to this applicant for the reasons given. I will grant the constitutional writs sought and refer this matter back to the Tribunal to be heard and determined according to law. I order that the first respondent pay the applicant’s costs which I assess in the sum of $5000.00.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 17 March 2008
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