SZLUV v Minister for Immigration

Case •

[2008] FMCA 131

•

1 February 2008

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLUV v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 131

MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of People's Republic of China – no evidence of bias – no reviewable error.

PRACTICE & PROCEDURE – Show cause application.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 425, 474
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
SZJFI v Minister for Immigration & Anor [2006] FMCA 1860
SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107
Applicant: SZLUV
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 3956 of 2007
Judgment of: Scarlett FM
Hearing date: 1 February 2008
Date of last submission: 1 February 2008
Delivered at: Sydney
Delivered on: 1 February 2008

REPRESENTATION

Applicant: In Person
Solicitor for the Respondent: Ms. Baggett
Solicitors for the Respondent: DLA Phillips Fox

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $2,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3956 of 2007

SZLUV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is a show cause application. The Respondent, who is the Minister for Immigration & Citizenship, has, through a Response, claimed that the Applicant's substantive application does not contain any arguable grounds for relief.  Accordingly, the Minister asks the Court to dismiss the application at this stage. 

Background

  1. The Applicant is a citizen of the People's Republic of China. His application to the Court is an application for review of the Refugee Review Tribunal. The Tribunal signed its decision on 20th November 2007 and handed that decision down on 29th November 2007. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa. 

  2. The Applicant seeks to have that decision set aside and his application for review remitted to a differently constituted Refugee Review Tribunal. There is a difficulty about that particular order and the Minister submits that the Court, even if it were to remit the application to the Tribunal, does not have the jurisdiction to make an order as to the constitution of the Tribunal. 

  3. The Applicant arrived in Australia on 2nd April 2007.  He applied for a Protection (Class XA) visa on 17th May 2007.  He applied on the basis of a well-founded fear of persecution if he were to return to China because he is regarded by the authorities in the People's Republic of China as a person who has severely damaged the good reputation of the Communist government and its officials solely for the purpose of inciting an anti-government movement. The Applicant claims that he and a number of other owners of petrol stations brought a protest against intimidation and extortion by the owner of a transportation company who was assisted by corrupt officials.

  4. The Applicant attended a hearing of the Refugee Review Tribunal on 29th October 2007 and gave evidence. The Tribunal handed down its decision on 29th November 2007. 

  5. A copy of the Tribunal decision record can be found at pages 81 through to 94 of the Court Book.  In that decision record the Tribunal summarised in detail the Applicant's oral evidence to the Tribunal.  The Tribunal also referred to Independent Country Information about exit procedures from that country taken from various sources including the Immigration & Refugee Board of Canada and advice from the embassy of the People's Republic of China in Ottawa.

The Tribunal’s Findings and Reasons

  1. The Tribunal's findings and reasons are set out on pages 91 through to 93 of the Court Book. The Tribunal accepted that the Applicant was a citizen of China based on sighting the Applicant's original passport and having received a copy of that passport. However, the Tribunal found that the Applicant was not a witness of credit and described his evidence as “confused, implausible and inconsistent.”[1]

    [1] See Court Book at page 91.

  2. The Tribunal noted that the Applicant changed his evidence during the hearing on several occasions and held:

    Even allowing for nervousness, the Tribunal does not accept that such fundamental lapses and conflicting versions can be given in a short space of time.[2]

    [2] See Court Book at page 91.

  3. The Tribunal based its decision on its disbelief of the Applicant's evidence and its reliance on country information.  The Tribunal did not accept that the Applicant would have been able to leave the country legally with a passport issued in his own name if he was in fact sought by the authorities.

  4. The Tribunal did not accept that the Applicant had a well-founded fear of persecution and affirmed the decision not to grant him a protection visa.

Application for Judicial Review

  1. The substantive application relies on two basic grounds:

    i)An error of law constituting jurisdictional error.

    ii)Procedural error in the tribunal decision constituting an absence of natural justice.

  2. The particulars of those grounds are:

    a)An allegation of a failure by the Tribunal to comply with its obligations under s.424A(1) of the Migration Act. 

    b)A claim that the Tribunal assessed the Applicant's credibility incorrectly in which the Applicant does not accept that his evidence was confused, implausible and inconsistent, although he accepted there was some misunderstandings between him and the Tribunal. He further claimed that the Tribunal did not have a basic understanding of the actual situation in China and claimed that the interpreter was unable to interpret conversations between him and the Tribunal accurately.

    c)The Applicant gives is an apprehension of bias and he pointed out that he was under huge pressure at the Tribunal hearing but was strongly under the impression that the Tribunal had already made its decision and the hearing was a mere formality.

  3. The Applicant reiterated those claims in oral submissions and also claimed that he did not have a chance to argue or comment about those matters. 

  4. The substance of the Minister's submissions are that these grounds cannot be made out and that the Applicant has not provided evidence upon which the Court could be satisfied that they could be made out.  As far as a breach of s.424A is concerned; Ms Baggett for the Minister pointed to the decision of the High Court in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 and has submitted, correctly in my view, that the only information relied upon by the Tribunal was:

    i)The Applicant's oral evidence to the Tribunal and

    ii)The Independent Country Information.

    Both of those pieces of information are covered by sub-section 424A(3) of the Migration Act. Consequently, she submitted there is no evidence of any breach of sub-section 424A(1).

  5. As to the allegation of an incorrect assessment of the Applicant's credibility; it is submitted that assessment of credibility is a factual matter for the RRT.  As such it is not open to judicial review.  Certainly there is evidence upon which, based on the Tribunal's reasons, that the Tribunal could have formed that view.

  6. Ms Baggett, on behalf of the Minister, also pointed out that there was no evidence that the standard of interpretation at the Tribunal hearing was inadequate or more particularly so inadequate that the Applicant was effectively prevented from giving evidence at the hearing on matters relevant to the Tribunal's conclusions that were adverse to him. She drew the Court's attention to the Tribunal's summary of the oral evidence, page 86 of the Court Book, where the Tribunal asked the Applicant at the beginning if he had any problems with the interpreter and the Applicant indicated that he did not. 

  7. As to the ground, the reasonable apprehension of bias; Ms Baggett has submitted that the Applicant has provided no evidence to establish a reasonable apprehension of bias and refers the Court to Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425.  It is on those bases that the Minister opposed all the orders sought in that no reasonable cause of action had been shown. 

  8. The Minister also submits that an order that the Tribunal be reconstituted to a different member is not a matter for the Court to decide and refers to my own decision in SZJFI v Minister for Immigration & Anor [2006] FMCA 1860 at [33].

  9. The Applicant submitted that the Tribunal did not give him a fair chance and the Tribunal had rejected him because he has used his own passport to leave the country, complained that he was not properly informed about the inconsistencies in his evidence or given a chance to argue a comment on that.  He submitted that there may have been misunderstandings due to a different cultural background on the part of the Tribunal Member and submitted that it was possibly an interpreter problem or possibly because he was under enormous pressure.

Conclusion

  1. The fact is that this Tribunal decision was based largely on an adverse finding as to the Applicant's credit. The Tribunal found the Applicant's evidence to be confused, implausible and inconsistent to such an extent that it did not accept his basic claims. The Tribunal did take into account the fact that the Applicant may have been under pressure and found that even allowing for nervousness it could not accept that the fundamental lapses and conflicting versions in his evidence could be given in a short space of time. The Tribunal preferred the Independent Country Information to the Applicant's claims and that is within the area of the Tribunal to decide. 

  2. The Applicant's claim that there was a breach of s.424A of the Migration Act cannot be made out.  It is clear that the only information that the Tribunal relied upon was the Applicant's own evidence and the Independent Country Information. Both of those areas of information are specifically excluded by sub-section (3) of s.424A of the Migration Act. 

  3. I have indicated earlier that assessment of credibility is solely a matter for the Tribunal. It is a factual finding based on the Tribunal's assessment of the applicant's oral evidence at the hearing.  In my view there were grounds for the Tribunal not to be satisfied that the Applicant was a witness of truth. There is no evidence that the interpreter was in any way inadequate and it appears from the Applicant's submission that this is a mere speculation on his part. 

  4. An allegation of bias is a serious allegation which must be strictly alleged and proved. There is no more than a bald assertion of bias which is really based on nothing more than an assertion by the applicant that he believed the hearing to be a mere formality. The Tribunal decision record does not support that claim at all.  There is no transcript provided by the applicant and nothing more than an assertion of a belief by him.  There is no evidence of bias. 

  5. It is in fact also the case that the Full Court of the Federal Court has expressed doubt as to the power of the Federal Magistrate to make an order that the Tribunal be differently constituted on remitting an application to the Tribunal and I refer particularly to the judgment of the Full Court and Federal Court, Emmett, Siopis and Rares JJ in SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107.  

  6. The Applicant's grounds are unfortunately no more than the standard form grounds or allegations that appear in so many applications. It is commonplace to allege a breach of s.424A.  It is all too common for an allegation of bias to be made. It is all too common for allegations of failures by interpreters to be made.  In many cases, including this one, there is no evidence or particularisation to support any of these standard grounds.  I am of the view that the Minister's decision must be upheld. The application does not contain any grounds that are reasonably arguable and in my view the application should be dismissed.  I propose to dismiss the application.

  7. There is an application for costs on behalf of the First Respondent Minister.  The Applicant has been unsuccessful in his claim and this is an appropriate case for costs. The Minister seeks the sum of $2,500.00 which is an appropriate amount under the Federal Magistrates Court Rules.  I propose to make that order.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: 

Date:  11 February 2008


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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
SZJFI v Minister for Immigration [2006] FMCA 1860