SZLNQ v Minister for Immigration
[2008] FMCA 1151
•15 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLNQ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1151 |
| 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 “SZLNQ”. |
| Migration Act 1958 (Cth), ss.91X, 422B, 424A, 425, 426(1), 441A(5), 441C(5) Migration Regulations 1996 (Cth), reg.4.35D |
| Minister for Immigration & Multicultural & Indigenous Affairs v Laylat [2006] FCAFC 61 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592 SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62 SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 |
| Applicant: | SZLNQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3275 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 1 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 15 August 2008 |
REPRESENTATION
| Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Counsel for the Respondents: | Ms M Palmer (solicitor) |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed on 22 October 2007 is 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 3275 of 2007
| SZLNQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant was born in 1973 in Qinyuan County, Liaoning Province and is a citizen of the People’s Republic of China. The applicant claims he is married and that both his wife and daughter still reside in China. Prior to the applicant’s departure to Australia on a Chinese passport, he resided in Gaofeng County, Linghai, Liaoning Province from January 2005 to May 2007.
The applicant claims in his application for a Protection (Class XA) visa that he was introduced to Falun Gong by his aunt. The applicant’s mother also practiced Falun Gong to improve her health. The authorities became aware that the applicant and his family practiced Falun Gong and in December 2004, the county leader (a Mr Li) ordered that the applicant be taken to the county government building. Mr Li told the applicant that he could be detained at any time for practicing Falun Gong and ordered that he write a repentance letter. However, when the applicant arrived home he was encouraged by his family to leave as soon as possible. The applicant moved to Gaofeng County and married shortly after. After his departure, his family told him that someone had been looking for him.
The applicant claims that he borrowed 60,000 RMB and departed China for fear of persecution. The applicant arrived in Australia on 26 May 2007 and applied for a Protection (Class XA) visa on 7 June 2007. A delegate of the Minister for Immigration refused to grant the visa and the applicant applied to the Refugee Review Tribunal (“the Tribunal”) on 18 July 2007. The Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa on 6 September 2007. It is this decision (reference 071582930) which is the subject of proceedings in this Court.
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 three grounds 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 21 January 2008. 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.
The Tribunal decision
On 18 July 2007 the applicant lodged an application with the Tribunal for a review of the delegate’s decision made on 20 June 2007 on the basis that the delegate was not satisfied that the applicant was a “genuine committed Falun Gong practitioner”. The applicant was invited to attend the Tribunal hearing, which he duly attended on 5 September 2007, to give oral evidence and present arguments in support of his case. The Tribunal handed down its decision on 27 September 2007 indicating it was not satisfied that the applicant was a Falun Gong practitioner and did not accept that he had practiced Falun Gong in China or Australia.
In forming this view, the Tribunal made the following findings:
a)On the applicant’s own admission, he had only practiced Falun Gong once or twice because he had been too busy (CB 65.5);
b)The applicant’s oral evidence at the hearing conflicted with the statement sent to the Tribunal on 1 August 2007. This was a two page document, one written in Chinese and the other in English titled “Statement”. The applicant claims in his statement:
i)that his mother learnt Falun Gong from his aunt in 2003. However, in oral evidence the applicant claimed that his mother knew little about Falun Gong prior to 2004 (CB 65.9-66.1).
ii)that a county leader went to his house and took him to a government office for him to repent. However, at the hearing the applicant stated that the leader had come to his house to arrest his mother but the applicant went in her place (CB 66.2).
c)The applicant did not claim that he distributed leaflets promoting Falun Gong in his written statement but raised this claim at the hearing (CB 66.4).
d)The applicant lacked Falun Gong practice and belief (CB 66.6).
Consideration
Ground one
Jurisdictional error has been made.
This ground is an assertion of jurisdictional error without particulars identifying what aspect or part of the Tribunal decision gives rise to such an error. However, as the applicant has no knowledge of the operation of migration law and has apparently relied on an unidentified third party to assist him in bringing this claim, I will interpret ground one to be nothing more than a claim that he seeks a review on the basis of jurisdictional error. The contents of ground one do not advance the applicant’s position any further.
Ground two
Procedural fairness has been denied.
This again is an allegation of error made in the absence of particulars or submissions identifying which of the procedures adopted by the Tribunal denied the applicant procedural fairness. As the application to the Tribunal was lodged on 18 July 2007 the new provisions set out in the Migration Amendment (Review Provisions) Act2007 No 100 (Cth) apply to this application. Similarly s.422B of the Migration Act 1958 (Cth) (“the Act”) was also in force at the time that the application was made. Section 422B excludes the common law natural justice hearing rule including any common law obligation on the Tribunal to put matters to the applicant at the hearing: SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62; Minister for Immigration & Multicultural & Indigenous Affairs v Laylat [2006] FCAFC 61. The Migration Amendment (Review Provisions) Act introduced a new provision which requires the Tribunal to comply with s.422B(3), in that the Tribunal “must act in a way that is fair and just”.
Ms Palmer, for the first respondent, provided a review of the general aspects of Part 7, Division 4 of the Act to determine whether this Part of the Act has been complied with.
Ms Palmer submits that the following steps were followed by the Tribunal:
a)It wrote to the applicant’s authorised recipient pursuant to s.425 of the Act, advising that it was unable to make a favourable decision on the information before it. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing (CB 47-49).
b)The letter was validly given and complied with ss.425A, 426(1) and 441A(5) of the Act:
i)The notice was dispatched by fax to the authorised recipient: s.441A(5).
ii)The notice was given within the prescribed period, that is, 14 days after notification of the hearing was received: reg.4.35D of the Migration Regulations 1996 (Cth).
iii)Notification is taken to have been received at the end of the day in which the invitation was transmitted: s.441C(5).
c)No breach of ss.425 or 425A of the Act occurred.
d)The applicant replied to the invitation on 30 August 2007 (CB 51).
e)The applicant attended the Tribunal hearing on 5 September 2007 (CB 52).
f)The applicant gave evidence for approximately one hour and twenty minutes (CB 52).
g)The Tribunal decision record indicates that the member provided the applicant an opportunity to give evidence.
h)The member raised the difficulties she had with the applicant’s evidence on a number of occasions throughout the hearing.
i)The member asked the applicant whether he wished to respond to her comments (CB 62-64).
Accordingly the applicant was clearly on notice as to the nature of the issues under review and the Tribunal acted in a way that was fair and just with no breach of s.425(1) (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592 at [42]-[44]) or s.422B(3) of the Act. There is no transcript of the Tribunal hearing in evidence and the Court is forced to rely on the decision record. As indicated above, the procedural steps have been complied with and there is no indication that the manner in which the Tribunal conducted the hearing or the questions asked were in any way inappropriate, unfair or unjust. It also must be kept in mind that a Tribunal hearing is inquisitorial in nature and may involve direct and searching questions for the Tribunal to be satisfied with the claims and responses made by the applicant: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 at [27] per Kenny J.
Ground three
RRT did not give me letter to explain doubts.
Although not directly stated, the applicant is raising an alleged breach of s.424A of the Act in that the Tribunal did not provide him with a letter in accordance with that provision of the Act. I agree with the written submissions made by Ms Palmer that the reason the Tribunal dismissed the application was that it was not satisfied with the applicant’s evidence provided at the hearing and particularly:
a)his lack of knowledge about Falun Gong; and
b)the conflicting evidence between his statement to the Tribunal and his oral evidence at the hearing.
These findings arose from evidence given by the applicant at the hearing. In the absence of a transcript, the Court relies upon the contents of the “Claims and Evidence” section of the Tribunal decision. Each of the issues raised by the applicant was recorded followed by the question asked by the member and the response given.
The Tribunal sent a letter to the applicant inviting him to a hearing and notifying him that the Tribunal was not able to make a decision in his favour (CB 38-49). The Tribunal therefore had informed the applicant that it was not satisfied that he had a well-founded fear of persecution because of the inadequacies in the information he provided. The applicant was informed of that reason prior to the Tribunal hearing and decision. The information before the Tribunal was the same information that was the subject of the “Invitation” letter. That is, the Tribunal notified the applicant in writing and considered the information insufficient and, for that reason and without more information, it affirmed the delegate’s decision under review.
It has been held that the gaps or deficiencies identified by the Tribunal constitute “information” for the purposes of s.424A(1) and comply with s.424A(1) and s.424A(2): SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 at [16]; SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 at [20]. In SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24, the majority of the High Court held that the Tribunal was bound to give an applicant written notice of information it had obtained from another source and ensure that the applicant understood the potential effect of that information on its decision. His Honour Kirby J observed at [175]:
People of differing intellectual capacity, operating in an institution of a different culture, communicating through an unfamiliar language, in circumstances of emotional and psychological disadvantage will often need the provision of important information in writing. Even if they cannot read the English language — or like the appellants, any language — the presentation of a tangible communication of a potentially important, even decisive, circumstance from the Tribunal permits them to receive advice and give instructions.
This ground of review is not particularised and it is unclear if the applicant is claiming that he was not notified of any doubts the Tribunal may have had. I am satisfied that the circumstances in this case can be clearly distinguished from the circumstances of the applicant in SAAP. The only material considered by this Tribunal was material supplied by the applicant himself and certain independent country information which is subject to the exemption in s.424A which I will refer to below.
The “Invitation” letter forwarded to the applicant clearly states:
The Tribunal has considered the material before it but is unable to make a favourable decision on this information alone.
This letter is an invitation to the applicant listed above, to appear before the Tribunal to give oral evidence and present arguments. (CB 48)
This letter was sent to the applicant’s agent in accordance with the applicant’s instructions in his Tribunal application. A qualified migration agent would have understood the significance of such a letter issued under s.425 of the Act.
In SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, the majority of the High Court at [18] approved the statement of Finn and Stone JJ in VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [24] 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.
It is by no means clear what the applicant is attempting to claim in this ground but if he suggests that inconsistencies and lack of detail constitute “information” within the meaning of s.424A(1), then this cannot be sustained as the Tribunal’s findings arose from evidence that the applicant gave at the hearing and not from any other source. As all the material before the Tribunal was supplied by the applicant, it falls within s.424A(3)(b) of the Act which operates as an exception to the obligation under s.424A(1).
Alternatively, if the applicant is attempting to suggest that the material identified as independent country information falls within s.424A(3)(a), it is not specifically about the applicant or any person directly associated with him but about a class of persons of which the applicant is a member. In the circumstances, I am satisfied that any claim that the applicant is attempting to pursue on the grounds of a failure of the Tribunal to comply with s.424A cannot be sustained.
Conclusion
The applicant in these proceedings is a self represented litigant who appeared with the assistance by a Mandarin interpreter. The Court provided the applicant with the opportunity to participate in the panel advice scheme, and leave to file an amended application and any additional supporting information in affidavit form. At the hearing the applicant still relied upon his original application as no amended application had been filed. The applicant appears to have been assisted by an unidentified third party with a limited understanding of judicial review in preparing his application to this Court. The applicant had no clear understanding of the function of this hearing and appeared to be under the mistaken belief that it was a further merits review of his protection visa application. Unfortunately, the applicant did not make any meaningful submissions and only requested that his case be returned to the Tribunal for a more detailed examination of his claims.
This places an obligation on the Court to independently consider whether material contained in the Court Book, and in particular the Tribunal decision, supports 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 issues identified in the application have been satisfactorily addressed. I believe that on a fair reading of the material available, the applicant’s claims were rejected on a credibility basis. This was due to his lack of a fundamental knowledge of Falun Gong and a number of inconsistencies between his written statement provided to the Tribunal and his oral evidence given at the hearing. 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. The application should be dismissed with costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 15 August 2008
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