SZLGP v Minister for Immigration
[2008] FMCA 337
•29 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLGP & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 337 |
| MIGRATION – RRT decision – Chinese applicant claiming persecution as supporter of dissidents – disbelieved by Tribunal – no jurisdictional error found – application dismissed. |
| Migration Act 1958 (Cth) |
Re Refugee Review Tribunal & Anor; Ex Parte H & Anor (2001) 179 ALR 425
SZIAY v Minister for Immigration [2006] FMCA 1680
SZILP v Minister for Immigration [2007] FMCA 592
| First Applicant: | SZLGP |
| Second Applicant: | SZLGQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2729 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 29 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 29 February 2008 |
REPRESENTATION
| Counsel for the Applicants: | In Person |
| Counsel for the First Respondent: | Ms L Clegg |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicants must pay the first respondent’s costs in the sum of $4,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2729 of 2007
| SZLGP |
First Applicant
| SZLGQ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicants are a husband and wife, whose son and daughter were studying in Australia in 2006. The wife came to Australia on a visitor’s visa in March 2006, and her husband arrived in December 2006. On
2 February 2007they lodged applications for protection against return to the People’s Republic of China, assisted by migration agent Priscilla Yu. Only the husband made claims to fear persecution, and the wife made no separate claims.
A statement attached to the application narrated events which had occurred after the wife had come to Australia. It said that in August 2006, the husband employed a distant relation, Mr C, on his fresh water fish farm in Fujian province. Mr C told him that his farmland and other people’s farmland had been confiscated by the Local Government to build a transformer substation. He said that there had been protests and arrests, including that of Mr C’s brother, Mr X. The applicant claimed to have spoken to, and given money to, Mr Y, an official in the municipal government, to procure the release of Mr X in around October 2006.
On around 11 November 2006, the applicant husband was informed that Mr C and Mr X were in hiding from the police after another incident, in which there had been a clash between nearly 100 police and the local farmers who were protesting at the land confiscation. The applicant claimed that he “arranged them to a secret place”, and subsequently contacted a “reliable friend” who was a fisherman and who had “some special contacts with the people in Taiwan; and I was going to send (those people) to Taiwan through that reliable friend”. The police came to his farm on the day after the incident, looking for Mr C. The applicant was questioned, and “the police came to me for five or six times, but they could not find anything”. However, he claimed to have been scared, and to have started “applying to go to the overseas for my own safety in case I was discovered by the police”.
The applicant husband’s statement said that on around the 17th December 2006, he received news that the two people being smuggled to Taiwan “were discovered by the navy and arrested immediately”, so that he himself left China on 20 December. After he left China, “many police came to my home” with an arrest warrant”. He had been denounced as a supporter of political dissidents, and was on the “blacklist of the PSB”.
No corroboration of those claims was given to the Department of Immigration, nor subsequently to the Refugee Review Tribunal, except for an internet media report of an incident on a construction site. But that report did not indicate any involvement by the applicant nor by the people to whom he had referred in his statement.
A delegate refused the applications on 27 March 2007. The delegate referred to the absence of plausible information supporting the claim that the authorities took a serious interest in the applicant husband, and referred to his statement being “particularly vague about how he knew he had been implicated in the escape arrangements”. The delegate concluded that the applicant had “fabricated a set of circumstances for himself solely with a view to engaging Australia’s protection obligations”.
On appeal, the applicant husband and his wife attended a lengthy hearing held by the Tribunal on 3 July 2007, which was continued on 6 July. A transcript of what was said at that hearing is not in evidence before me, but the Tribunal gave a lengthy description of its questioning of the applicant husband about his claims. In the course of that questioning it is clear that the Tribunal drew his attention to some points of concern, and to some inconsistencies which the Tribunal perceived to have been revealed in his evidence. Some of these were also put to the applicants in writing by letter dated 10 July 2007.
The applicant husband responded to these concerns in a statutory declaration forwarded by his agent, but this sought to rationalise the inconsistencies in a way which differed from the applicant’s responses to the Tribunal at the hearing when they had been put to him there.
In its decision handed down on 9 August 2007, the Tribunal affirmed the delegate’s decision. Under the heading “Findings and Reasons” it provided numerous points in the applicant husband’s evidence where it detected vagueness, implausibility or inconsistency, and these caused it ultimately to disbelieve the applicant husband. The Tribunal noted that the applicant wife had told the Tribunal that she had no knowledge herself of any of the events that had happened in China.
The Tribunal identified each of the particular elements in the applicant’s claimed history, and was not satisfied as to any of them. It said that it was not satisfied that the applicant had suffered any harm on the basis of any actual or imputed anti-authority opinions or actions, nor that there was a real chance that he would suffer any Convention-related harm in the reasonably foreseeable future. Based on its findings it also thought that the applicant wife would not face a real chance of Convention-related harm.
The applicants now ask the Court to set aside the Tribunal’s decision and to remit the matter to the Tribunal for further consideration. I can only make these orders if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have authority myself to decide whether the applicants’ claims should be believed, nor whether they qualify for protection visas or any other permission to stay in Australia.
The applicants rely on arguments presented in their original application, and they did not file an amended application or written submissions after being served with a bundle of relevant documents and being given a referral for free legal advice. The applicant husband today read to me a submission in Chinese, which repeated the arguments contained in the original application.
It presents two grounds. The first is:
The Tribunal has not made a genuine attempt to assess all the evidence given by me in support of my claim for having a well-founded fear of being persecuted on my return.
There is then reference to elements in the applicant’s claimed history, and in the Tribunal’s reasoning, where it is argued that the Tribunal “presented unsupported, unreasonable and capricious adverse conclusions to justify its decision, and failed to address significant evidence properly and fairly”. Reference is made to a decision given by me in SZIAY v Minister for Immigration [2006] FMCA 1680, in which I described the effect of relevant authorities:
5. A requirement that the applicant’s evidence should “be given a proper, genuine and realistic consideration in the decision” made by the Tribunal appears to be accepted in the High Court (see NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77 at [9]‑[10], [37], [171]‑[172]; but compare the previously stated position in the Federal Court: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 (“NABE”) at [51]). There also appears to be acceptance by the High Court that jurisdictional error may be found if the Court can answer negatively the question “whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds” (c.f. Gummow and Hayne JJ, Gleeson CJ agreeing, in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 (“SGLB”) at [38], citing Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [34] and [37], and c.f. Kirby J in Applicant S20 at [81] and [137]: “not a real exercise” of jurisdiction).
6. However, these propositions are qualified by the proposition that “want of logic does not of itself suffice to constitute error of law, still less error of law which is jurisdictional” (NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [30], followed in VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 at [16], emphasis added). Further, a long line of authorities warn that “mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision” (see NABE (supra) at [53], emphasis added). In the paragraph of SGLB containing the statement quoted above, it was said that “inadequacy of the material before the decision‑maker concerning the attainment of that satisfaction [as to a factual matter] is insufficient in itself to establish jurisdictional error” (emphasis added).
7. The poorly defined scope of the jurisdictional obligation on the Tribunal to arrive at its decision by a rational process of thought usually causes a court on judicial review to treat irrational or unsupported factual findings only as potentially evidentiary of a better understood head of jurisdictional error. Such defects may establish a failure to address the refugee claims which were before the Tribunal, or show a misconception of the legal principles governing the Tribunal’s review. They may reveal a failure to take into account relevant matters required to be addressed, or the taking into account of irrelevant matters, which themselves may also amount to jurisdictional error (c.f. Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] citing Craig v South Australia (1995) 184 CLR 163 at 179). An erroneous finding as to the effect of significant evidence may reveal only an error of factual assessment made within jurisdiction, or it might allow the conclusion that the Tribunal did not, in fact, consider the evidence and therefore did not “finish its jurisdictional task” (c.f. Allsop J in SZHFC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1359 (“SZHFC”) at [38]‑[42]). In extreme cases, flawed reasoning might support the conclusion that the Tribunal approached its task recklessly, without an honest or genuine attempt to consider the evidence favouring the applicant (c.f. SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547 (“SAAG”) at [36], Minister for Immigration & Multicultural & Indigenous Affairs v NASS [2003] FCA 477 at [34], and the discussion of “bad faith” in the context of the “Hickman principles” in Wu v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 123 FCR 23 at [57]‑[61] and Applicant WAFV of 2002 v Refugee Review Tribunal (2003) 125 FCR 351 at [38]‑[54]).
In SZIAY I was persuaded that the Tribunal had not made a genuine attempt to assess the refugee claims in that case, but had reviewed the evidence only to look for reasons why the claim could be rejected.
I arrived at that conclusion after identifying significant evidence which was not addressed, conclusions which were drawn which were irrational or contrary to the evidence, and clearly illogical and unsupported reasoning.
I am not persuaded by any of the arguments presented in the present application that such things happened in this case. The Tribunal, in my opinion, addressed the whole of the applicants’ claims and all the evidence which was before it. It provided reasons to explain its finding on credibility which are not irrational, and I consider that the conclusion on credibility was open to it on the material.
In my opinion, the arguments presented by the applicant, for example, concerning the Tribunal’s reasoning in relation to his bribing of the official to obtain the release of Mr X, argue only with the merits of the Tribunal’s reasoning about the applicant husband’s evidence, but do not reveal any evidence of a failure genuinely to attempt to assess that evidence.
There are suggestions in the application that the Tribunal did not allow the applicant to understand its concerns at the hearing. However, there is no evidence showing this, for example, in a transcript, and the Tribunal’s description of the hearing suggests that the applicant was given a full opportunity to answer its concerns.
I am, therefore, not persuaded that any of the contentions made in the first ground are made out in this case.
The second ground in the application is that “The Tribunal made a decision with bias”. This ground is not supported by reference to any transcript of what happened at the hearing, nor to any aspect of the Tribunal’s proceedings occurring before it announced its reasoned decision. The argument which is presented is that bias should be found upon a reading of that decision.
However, the fact that a Tribunal arrived at adverse conclusions does not show that it did not bring an open mind to consideration of the evidence before arriving at those conclusions. The present case does not display any of the characteristics found in SZILP v Minister for Immigration [2007] FMCA 592, which is cited in the application, where a Tribunal “lightly dismissing” evidence and corroborative documents. Rather, the present statement of reasons shows the Tribunal coming to close quarters with all of the applicant’s evidence.
Minds might differ on the significance of some of the points made by the Tribunal as indicators of unreliable evidence, but in my opinion a fair-minded lay observer would not apprehend from reading the Tribunal’s decision that it did not bring an independent and open mind to deciding the matter before it (see Re Refugee Review Tribunal & Anor; Ex Parte H & Anor (2001) 179 ALR 425). I therefore am not persuaded by the argument presented in support of ground 2 of the application.
Since I have not been able to identify any jurisdictional error affecting the decision of the Tribunal, I must dismiss the application.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 19 March 2008
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