SZLHY v Minister for Immigration
[2008] FMCA 277
•20 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLHY v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 277 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZLHY”. |
| Migration Act 1958 (Cth), ss.91X, 424A |
| Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 SZBYR v Minister for Immigration & Citizenship & Anor (2007) 235 ALR 609 |
| Applicant: | SZLHY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2829 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 22 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 20 March 2008 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitors for the Respondents: | Mr G Hooper of DLA Phillips Fox |
ORDERS
The application filed on 13 September 2007is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2829 of 2007
| SZLHY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant was born in 1974 in Fujian province, the People’s Republic of China. He attended school for ten years and began employment in computerised embroidery. He claims he was gradually promoted because of his ability and skills. The applicant gave no details of his marriage but claims he was divorced in 2001 and has a daughter who was born in 1999. His daughter lives with her maternal grandfather.
He claims he came to the attention of the Chinese authorities between August and October 2006 for his activities in March or April 2006 when he warned some Falun Gong practitioners and told people about family planning. He states that village committees were instructed to investigate certain Falun Gong practitioners and report them to the authorities. Because of his position in his village committee, the applicant was supposed to collect evidence and provide this to the authorities. He had observed about eight to ten villagers practicing Falun Gong at one of their homes. When the Public Security Bureau (PSB) began investigating, the applicant warned them that this was happening. The applicant claims that the PSB then wanted to identify the person who had notified the Falun Gong practitioners. When he left China, the village committee and the PSB were not aware that he was responsible but he claims they would continue investigations until they were successful.
The applicant arrived in Australia on 23 January 2007 and applied to the Department of Immigration & Citizenship for a Protection (Class XA) Visa on 28 February 2007. A delegate of the first respondent refused to grant the applicant a visa on 24 March 2007 and the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of the delegate’s decision. The Tribunal affirmed the delegate’s decision on 24 July 2007 and the applicant was notified by letter forwarded on 16 August 2007. It is the Tribunal’s decision (reference number 071365574) that is the subject of this review.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”. This document was read into evidence.
The original application contains one ground of review. The applicant was granted leave at the first Court date to file an amended application giving complete particulars of each ground of review relied upon by 11 December 2007. Any further information in support of the application was to be filed in affidavit form by the same date. At the time of the hearing, nothing had been filed.
At the first Court date, the applicant indicated that he wished to participate in the scheme that gives unrepresented applicants in refugee matters an opportunity to receive independent legal advice. The applicant was allocated a panel advisor.
Consideration
The Tribunal found that the applicant was not a credible witness as there was no credible evidence which demonstrated that the applicant was at risk of suffering serious harm if he returned to the People’s Republic of China. The Tribunal observed that the applicant’s evidence was “inconsistent, contradictory and implausible” and gave a number of examples:
i)The applicant’s evidence regarding the ease with which he obtained his passport did not accord with the country information concerning the Chinese government’s treatment of persons under investigation (CB 73.4).
ii)The applicant’s evidence concerning the manner in which photographs were provided to the authorities was vague and inconsistent, as was the evidence concerning the persons in the photographs (CB 74).
iii)The applicant provided inconsistent dates for investigations he claimed to have participated in (CB 74).
iv)The applicant’s evidence concerning how he came to the realisation that his superiors suspected him of warning the practitioners was vague and implausible (CB 74, 75).
Based on these findings, the Tribunal did not accept that the applicant’s claims of involvement in the investigation and warning the Falun Gong practitioners (CB 75).
I accept the first respondent’s written submissions that the rejection of the applicant’s substantive claim was premised on the Tribunal’s central finding that the applicant was not a credible witness. The question of an applicant’s credibility is a factual finding for the Tribunal par excellence: Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 at [67] per McHugh J:
[67] … a finding on credibility which is the function of the primary decision maker par excellence.
I am also satisfied that the Tribunal’s finding in this respect was open to it on rational grounds on the material before and discloses no error in its treatment of the applicant’s credibility: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547. The decision record, which is the only evidence before the Court in relation to the conduct of the hearing, indicates the concerns the Tribunal had about the applicant’s evidence was raised with him at the hearing. The applicant was unsuccessful because of the view the Tribunal took of the facts and, in particular, its finding that he was not credible.
Ground one
The RRT failed to afford the applicant procedural fairness as it failed to invite the applicant to comment on information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review. By failing to invite the applicant to comment the Tribunal acted in breach of the s.424A of the Act.
In RRT’s decision it was pointed out that there were inconsistencies, contradictions, and implausibility in the applicant’s evidence. The applicant was never advised of such inconsistencies before the decision was made and was never given an opportunity to explain on them.
The applicant did not comply with the order to file brief written submissions in support of his application. When invited to make oral submissions, he said that when he was interviewed by the delegate and the Tribunal he was not confident that the exchange was secure and that the information would not be provided to the PSB. When I pointed out that the Department and Tribunal both supplied information sheets on the conduct of their proceedings, the applicant declined to make any further comment. In the absence of a transcript of the proceedings I am not able to consider any comments made by the Tribunal member to the applicant in respect of the procedural operation of that Tribunal hearing.
The first respondent submits that the decision of the Tribunal was clearly based on the applicant’s evidence being inconsistent, contradictory and implausible. It is argued that the inconsistencies on which the decision is based do not constitute “information” for the purposes of s.424A of the Migration Act 1958 (Cth), see SZBYR v Minister for Immigration & Citizenship & Anor (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ:
[18] Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' 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 appellants' 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 and Multicultural and Indigenous Affairs that the word "information".14
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.
The first respondent submits that the Tribunal did not breach s.424A in concluding that the applicant’s evidence was implausible in view of the country information. Country information is expressly excluded from s.424A by way of s.424A(3)(a), unless it refers specifically to the applicant or to another person. The country information was identified under the sub-heading “Exit from China” (CB 72). This identifies the Department of Foreign Affairs and Trade reports that the Tribunal referred to, which are broad statements in respect of procedures followed by the Chinese authorities when citizens apply for a passport and its vetting procedures when citizens depart the country. There is no reference in this material to the applicant specifically.
Nor is there any obligation on the Tribunal to put to the applicant its subjective perception of his evidence for comment: SZBYR at [18].
The first respondent drew the Court’s attention to the applicant’s protection visa application:
If I go back, I will be mistreated by the Chinese government because of my political opinion and because of my previous assistance of Falun Gong practitioners. (CB 27.7)
The Tribunal decision under the sub-heading “Claims and Evidence” does not indicate that this issue was raised at its hearing of 21 June 2007. The first respondent submits it was unnecessary for the Tribunal to explicitly state that it did not accept that the applicant had a well-founded fear of persecution on the basis of his religion and political opinion because it found him not to be a reliable witness. Accordingly it rejected his claims in their entirety.
I agree with the first respondent’s written submissions in respect of ground one. I do not believe that s.424A is enlivened in the circumstances of this matter. A brief statement setting out the applicant’s claims was attached to his protection visa application. The delegate assessed the claims and clearly stated:
I consider that several aspects of the applicant’s claims lack credibility. I am of the opinion that the applicant’s claims have been fabricated. (CB 39)
This was explored more fully by the Tribunal at its hearing on 21 June 2007 (CB 68-71). In its “Findings and Reasons” the Tribunal affirms the delegate’s decision and makes the following observation:
In dealing with this application, the Tribunal has formed the view that the applicant lacks credibility and his material claims cannot be accepted. The applicant’s evidence was inconsistent, contradictory and implausible. (CB 73)
It then makes the following statement:
There is no credible evidence on which the Tribunal could find that the applicant stands at risk of suffering serious harm in the reasonably foreseeable future if he returns to China. (CB 75)
I agree with the first respondent’s submissions that the rejection of the applicant’s substantive claim was based on the Tribunal’s central finding that he was not a credible witness. When a finding of fact is open to the Tribunal on the evidence placed before it, the making of that finding cannot give rise to jurisdictional error.
Conclusion
The applicant in these proceedings was a self-represented litigant who appeared with the assistance of a Mandarin interpreter. The Court provided the applicant with a panel advisor but the applicant did not file an amended application. He had no clear understanding of the function of this hearing and was under the mistaken belief that it was a further merits review of his protection visa application. The judicial review process of the Tribunal’s decision was again explained and he was invited to make oral submissions. Unfortunately, the applicant did not respond with any meaningful submissions other than to request that the matter be returned to the Tribunal so that he could explain his claim.
This places an obligation on the Court to independently consider whether argument based on the material – that is the Court Book and in particular the Tribunal decision – may support a claim of jurisdictional error. The solicitors for the first respondent assisted with written submissions in response to the application. I am satisfied that the issue identified in the application has been satisfactorily addressed. I agree with those submissions that on a fair reading of the material available to the Court, the applicant’s claims were rejected on a credibility finding. It is not apparent that any other ground of review exists which would suggest that the Tribunal made a jurisdictional error in its decision-making process. Consequently, the applicant’s claims should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
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