SZLGP v Minister for Immigration
[2009] FMCA 558
•15 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLGP & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 558 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming persecution in China – principal applicant not believed – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 424AA, 425 |
| SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 SZITH v Minister for Immigration and Citizenship (2008) ALD 541 SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 SZLML v Minister for Immigration and Citizenship [2009] FCA 83 SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330 SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 SAMAE v Minister for Immigration and Citizenship [2008] FCA 1701 SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 SZMMP v Minister for Immigration and Citizenship [2009] FCA 233 |
| First Applicant: | SZLGP |
| Second Applicant: | SZLGQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 656 of 2009 |
| Judgment of: | Driver FM |
| Hearing date: | 15 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 15 June 2009 |
REPRESENTATION
The Applicants appeared in person
| Counsel for the Respondents: | Ms L Clegg |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 656 of 2009
| SZLGP |
First Applicant
SZLGQ
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 19 February 2009. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are two applicants, a husband and a wife. They also have two children in Australia who are not parties to either the Tribunal proceedings or the proceedings in this Court.
The relevant claims were made by the first applicant, the applicant husband. Background facts relating to the applicants' claims and the Departmental and Tribunal decisions on them are set out in the Minister's written submissions filed on 9 June 2009. I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 2 through to 21 of the Minister's written submissions:
The applicants are citizens of the People’s Republic of China (PRC).[1] The applicant wife arrived in Australia on 28 March 2006 on a subclass 580 (student guardian) visa valid to 31 December 2006.[2] The applicant husband arrived in Australia on 21 December 2006 on a visitor visa valid for three months.[3]
[1] court book (“CB”) 4.
[2] CB 25.
[3] CB 12,35,49.
On 2 February 2007 the applicants applied for protection visas (class XA). On 27 March 2007 the Minister’s delegate refused to grant the protection visas. [4]
[4] CB 52.
On 27 April 2007 the applicants applied to the Tribunal for review of the delegate’s decision.[5] On 30 July 2007 the Tribunal affirmed the delegate’s decision.[6]
[5] CB 63.
[6] CB 131 - 150.
The first Tribunal decision was quashed by order of Gordon J on 2 September 2008.[7] The matter was remitted to the presently constituted Tribunal to be re-determined according to law.
[7] CB 151. See decision at CB 152 – 166: SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198.
On 20 October 2008 the Tribunal invited the applicants to a second hearing scheduled on 10 November 2008. The applicants attended and the hearing was conducted over 2 hours.[8]
[8] CB 171, 176.
The Tribunal made a second decision affirming the delegate’s decision on 19 February 2009.[9] It is this decision which is the subject of the application for judicial review filed on 19 March 2009.
[9] CB 192.
As the applicant husband is the primary applicant in the application for review and in these proceedings, a reference to “the applicant” is a reference to him.
Applicant’s claims
The applicant claimed to fear persecution in the PRC on the basis of his political opinion and/or imputed political opinion. The applicant set out his claims to be a refugee in a written statement attached to his protection visa application.[10]
[10] CB 35 - 39.
The applicant claimed that he owned and ran a freshwater fish farm in Fujian province near Fuqing city. His life was uneventful until he was contacted by a distant cousin in August 2006. That cousin was in dispute with local authorities from Putian city, over the alleged confiscation of his land and a failed promise by the government to deliver compensation to the landholders whose land had been confiscated. The applicant claimed that at the time he gave this cousin a job working on his fish farm.
The applicant claimed that his cousin’s brother (who had organised for local farmers near Putain city to protest about the confiscation of his land) was arrested by the PSB in October 2006. The applicant’s cousin was required to return to his hometown. The applicant gave his cousin some money (10 000 Yuan) and a letter to a friend (Mr Zhou) whom the applicant knew in Putian City, and who worked for the local government. The applicant also telephoned Mr Zhou to plead for his help ‘to save’ the cousin’s brother, who was soon released.
The cousin and his brother continued to be embroiled in disputes with the local authorities over the land confiscation. On 11 November 2006 the applicant was contacted by Mr Zhou who informed him that there had been a major conflict and that some farmers had been injured. Later that day the applicant’s cousin contacted him and told the applicant that he and his brother were in hiding. The applicant picked them up and took them to a ‘secret place’.
The next day the police attended the applicant’s farm and questioned him for two hours. The police came again 5 to 6 times, but they could not find anything. The applicant told them nothing. The applicant was scared and ‘had to start applying’ to go overseas for his own safety.
The applicant helped to arrange for the safe passage of his cousin and cousin’s brother out of China to Taiwan on a fishing boat. However, on 17 December 2006 they were discovered by the navy and immediately arrested. The applicant was concerned that he would be exposed by his cousin and immediately went to Guangzhou. On 17 December 2007 he left China from Guangzhou.
The applicant claimed that since leaving the PRC the police have come to his home with an arrest permit on 3 occasions, and he has been denounced as a protector of political dissidents.
The applicant claimed he is on the blacklist of the PSB and will be arrested as soon as he returns to the PRC.
After the remittal to the Tribunal as presently constituted, the applicant submitted two new documents to the Tribunal:
a)a letter dated 6 March 2007 purporting to be addressed by the fish farm to the Fuqing PSB (and other state bodies) to the effect that the applicant had been dismissed as chairman of the fish farm and his shares confiscated;[11] and
b)a letter dated 7 August 2008 purporting to be addressed by the applicant’s home “villages committee” to the applicant’s family stating that due to the applicant’s “illegal activities”, he would not be compensated for the “land takeover” .[12]
It is apparent from the Tribunal’s account of the second hearing that at the second hearing the Tribunal pointed out and discussed with the applicant husband a number of discrepancies in his claims. The applicant wife did not give detailed evidence about the claims.
The Tribunal’s decision
The Tribunal disbelieved the applicant’s claims. It gave reasons for disbelieving the applicant’s claims.[13]
The essential reason for the Tribunal’s disbelief was that that it considered the applicant’s oral evidence was inconsistent and lacking in credibility. Also, the Tribunal gave the recent letters provided by the applicant no weight, finding they were of unreliable provenance.[14]
The Tribunal concluded that the applicant was not a witness of truth and was not satisfied that he faced a real chance of Convention-related persecution in the PRC.
[11] CB 178.
[12] CB 180.
[13] CB 206 - 209.
[14] CB 209 at [17.0]
The applicants rely upon a show cause application filed on 19 March 2009. The applicants assert breaches of ss.424A and 424AA of the Migration Act 1958 (Cth) (“the Migration Act”). Detailed particulars are provided by reference to the Tribunal's reasons. I incorporate in this judgment the grounds and particulars in the application:
1. The Tribunal failed to comply with its obligation under s.424AA of the Act.
Particulars
a. [Subject] to s.424AA of the Act, if an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
b. In the Tribunal’s decision, it has stated that:
150 On the evidence of the article submitted by the Applicant, the Tribunal finds it very difficult to accept that any of the protesters were or would be regarded by the authorities at any level as political dissidents, or that they would have attracted political profiles, even though outsiders were reportedly brought into the area in the days after the clash to monitor the local population.
151 On the evidence of the article and from the Applicant himself, both emphasising the involvement of local authorities, the Tribunal is of the view that the land resumption matter and the related protests were highly localised matters that happened some time ago. The Tribunal does not accept on the evidence before it that the authorities in the PRC would have cast a wide net in dealing with those who protested in or near that village on that day.
…
153 The Tribunal notes that the article submitted by the Applicant to the RRT does not name either of his claimed relatives. The articles does not suggest that they were of any significance in the events of that day, or that anyone was being sought by the police.
155 The article submitted by the Applicant in no way [s]upports his claim about the police arresting or trying to arrest anyone during or as a result of the 11 November 2006 protest in the village both the article and the Applicant have named. The Tribunal considers it odd that the article goes into such detail about some of the individuals involved and the number of people injured and about where they were taken for treatment, and yet makes no mention of any arrests or of the police seeking persons in connection with the sit-in.
c. It is no doubt that the Tribunal has considered the information obtained from the article, which I have submitted to the Tribunal, as the reason, or a part of the reason, for affirming the decision that is under review.
d. However, the Tribunal failed to orally give to me clear particulars of the above-mentioned information; and
– The Tribunal failed to ensure, as far as is reasonably practicable, me to understand why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
– The Tribunal failed to orally invite me to comment on or respond to the information; and
– The Tribunal field to advise me that I may seek additional time to comment on or respond to the information; and
– The Tribunal failed to advise me that if I seek additional time to comment on or respond to the information – adjourn the review, if the Tribunal considers that I reasonably need additional time to comment on or respond to the information.
e. So, the Tribunal failed to comply with its obligations under s.424AA of the Act.
f. In the Tribunal’s decision, it has stated that:
158 The Tribunal is of the view that the Applicant sought a visa for Australia for another reason, and finds that his own oral evidence at hearing supports this view: he said his original plan was to come to Australia, to meet his wife here and to return together with her to the PRC. On this evidence the Tribunal does not accept that he originally sought a visa for Australia or that he used it to come here for the purposes of seeking protection from serious [harm]. This is notwithstanding that a person could conceivably obtain a visa for one purpose and then suddenly find he or she needs to use it for another.
159 The Applicant’s position is that the documents he has provided add weight to the story he has told. The Tribunal finds they do not. The Applicant provided evidence of having left the fishery on good terms, with people there working for him and with him deriving profit from their work. The Applicant then tried to argue that the fishery somehow confiscated his shares in order to distance itself from the police investigation into his role in sheltering his relatives and smuggling them across the Taiwan straits, This reaction to the police does not make sense, and the Applicant was unable to illustrate even vaguely how other shareholders could sell or appropriate his shares; the best he could do was to suggest that the shares were never certified or registered shares, and this explanation was unconvincing and struck the Tribunal as improvised.
160 In addition to all this, the Applicant was not able to explain plausibly how a purportedly original letter on purportedly original letter had that was addressed to the police and other state instruments came into the hands of the Applicant’s family. The Applicant told the Tribunal that the fishery simply gave the letter to his family, but in the claimed circumstances this does not help to argue that the letter is genuine. Then, the Applicant gave unconvincing evidence as to why it took so long for this letter to be sent to him, and made inconsistent oral claims as to when and how he first learned of the action taken by his fellow shareholders. He seemed to suggest that as soon as the letter came to him, he took action quickly to submit it to the Tribunal and yet, having claimed at one stage that he learned about the share stripping hack in early 2007, he took no action to gather any information about it from anyone back in the PRC.
g. It is no doubt that the Tribunal has considered the information obtained from the document, which I have submitted to the current Tribunal, as the reason, or a part of the reason, for affirming the decision that is under review.
h. However, the Tribunal again failed to orally give to me clear particulars of the above-mentioned information; and
– The Tribunal failed to ensure, as far as is reasonably practicable, me to understand why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
– The Tribunal failed to orally invite me to comment on or respond to the information; and
– The Tribunal field to advise me that I may seek additional time to comment on or respond to the information; and
– The Tribunal failed to advise me that if I seek additional time to comment on or respond to the information – adjourn the review, if the Tribunal considers that I reasonably need additional time to comment on or respond to the information.
Again, the Tribunal failed to comply with its obligation under s.424AA of the Act.
2. Likewise, the Tribunal failed to comply with its obligations under s.424A(1) of the Act.
Particulars
The Tribunal failed to give me in writing clear particulars of the above-mentioned information that the Tribunal has considered would be the reason, or a part of the reason, for affirming the decision that is under review; and the Tribunal failed to ensure, as far as is reasonably practicable, me to understand why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and the Tribunal failed to in writing invite me to comment on or respond to the information.
I received as evidence a short affidavit by the first applicant which accompanied the application and the court book filed on 6 May 2009.
Both applicants attended today's hearing. Neither applicant filed or served written submissions, but the first applicant made oral submissions. The second applicant spoke briefly at my invitation. She said that she arrived in Australia before her husband and had no direct knowledge of the facts or circumstances in relation to his protection visa claims. She also said that she spoke the Fuqing dialect and the applicant had requested a Mandarin interpreter. I was able to satisfy myself, however, that the second applicant understood Mandarin, although she was not fluent in it.
The Minister submits that there is no substance to the asserted errors by the Tribunal:
Ground 1
In making its decision, the Tribunal relied upon:
(a)inconsistencies between the oral evidence presented to the first and second Tribunals and internal inconsistencies in the applicant’s evidence generally. Inconsistencies in evidence do not invoke s 424A obligations: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18].
(b)information provided by the applicant in his protection visa application. This information “did not contain in [its] terms a rejection, denial or undermining” of the applicant’s claims, and accordingly was not ‘information’ for s 424A purposes: SZBYR at [17].
(c)documentary evidence submitted to the Tribunal by the applicant. This information falls within the exception in s 424A(3)(b); and
(d)the applicant’s oral evidence before the Tribunal. This information falls within the exception provided by s 424A(3)(b).
Accordingly, the Tribunal did not rely upon information that invoked s 424A obligations.
Ground 2
For the reasons set out above, there was no “information” before the Tribunal which invoked obligations under s 424A or s 424AA.
Further, the material suggests that there was no attempt by the Tribunal to invoke or utilise the procedure envisaged by s 424AA. As the Tribunal has a complete discretion to invoke the provisions of s 424AA, it was not necessary for the Tribunal to comply with section 424AA. Finally, non compliance with the provision (even if embarked upon) would likely not amount to jurisdictional error in any event: see SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 per Tracey and Foster JJ at [103] – [104], Moore J agreeing at [1].[15]
[15] See also SZLXI v MIAC [2008] FCA 1270 per Cowdroy J; SAMAE v MIAC [2008] FCA 1701per Edmonds J; SZITH v MIAC (2008) ALD 541 per Middleton J; SZLWI v MIAC [2008] FCA 1330 per Gilmour J; SZLML v MIAC[2009] FCA 83 per Jagot J; and SZMMP v MIAC [2009] FCA 233 per Lander J.
I agree that there was no breach of either ss.424A or 424AA of the Migration Act in this case. The applicants place stress upon the asserted breach of s.424AA but as is now clear, that section is only engaged where an obligation arises under s.424A[16]. There was no obligation on the Tribunal to make a disclosure pursuant to s.424A in this case. That is because the Tribunal decision turned upon the applicants' own evidence, both oral and written. Although that extended to information provided in the applicants' protection visa application there is nothing in that which was inherently adverse to the applicants' claims. In that regard, counsel for the Minister properly drew attention to the fact that a departmental case note[17] discloses that the applicant told the Minister's Department that he had no shares in the company which formed a significant part of his claims before the Tribunal. The applicant told the Tribunal that his shares in the company had been confiscated. He produced a letter to support that claim. He was not believed.
[16] SZMCD v Minister for Immigration [2009] FCAFC 46
[17] CB 50
There was nothing to indicate that the Tribunal at any stage of the review saw any significance in the statement in the departmental record[18] that the applicant said he had no shares in the company. Certainly it formed no part of the Tribunal's reasons. Even if the Tribunal had had regard to that record, the Tribunal might reasonably have concluded that it was not adverse information. It may have been, for example, that the applicant was simply telling the Department that he had no shares in the company at the time he spoke to the Department. That would be consistent with his claim that his shares had been confiscated.
[18] CB 50
I reject the grounds of review in the application.
The first applicant believes that the Tribunal did not conduct the review fairly. In view of that oral submission, I have considered whether the Tribunal met its obligations under s.425 of the Migration Act. I am satisfied that it did. The Tribunal was unable to make a favourable decision on the papers and invited the applicants to a hearing. The applicants accepted that invitation and both attended a hearing on 10 November 2008. The applicants were assisted by an interpreter in the Fuqing dialect.
It is plain from the record of what occurred at the hearing that the Tribunal entertained serious credibility concerns about the first applicant's claims and his evidence. The Tribunal proceeded on a somewhat different basis than the delegate. The delegate's decision[19] centred on the vagueness of the applicants' claims and the lack of supporting detail. The first applicant attempted to deal with that defect before the Tribunal by providing details, both orally and in the form of documents. The Tribunal did not accept either the plausibility of his evidence or the authenticity of his critical documents. I am satisfied from the detailed recitation of what occurred at the Tribunal hearing[20] that the Tribunal put the applicants on notice of the essential and significant issues upon which the review would turn.
[19] CB 60
[20] Tribunal decision, pages 58 to 114, CB198-206
I conclude that the Tribunal decision is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $5,500. That is slightly below the scale amount. The first applicant simply indicated his intention to appeal. I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,500.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 17 June 2009
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