SZLUX v Minister for Immigration
[2008] FMCA 655
•20 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLUX v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 655 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A(1); 424A(3)(b); 474; pt.8 div.2 |
| NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 Abebe v Commonwealth of Australia (1999) 162 ALR 1 Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 Lee v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 464 SZBYR v Minister for Immigration and Citizenship and Anor (2007) 235 ALR 609 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 |
| Applicant: | SZLUX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3957 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 20 May 2008 |
| Date of last submission: | 20 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 20 May 2008 |
REPRESENTATION
| Applicant appeared in person assisted by a Mandarin interpreter |
| Counsel for the Respondent: | Mr J. Knackstredt |
| Solicitors for the Respondent: | Mr C. Thorpe, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3957 of 2007
| SZLUX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 9 November 2007 and handed down on 20 November 2007.
The Applicant claims to be from the People’s Republic of China (“China”) and previously worked as a goldsmith and later in construction (“the Applicant”).
The Applicant arrived in Australia on 20 April 2007 having departed legally from Shekou on a passport issued in his own name.
On 30 April 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
The Applicant provided a statement in support of his protection visa application. The Applicant claimed that in 2006 he had been involved in a project to build a road for the military. The Applicant claimed that he was never paid in respect of the project and therefore engaged a lawyer and undertook legal action to recover his due payment. In February 2007 the Applicant stated that his claim for payment in a civil court was not accepted by the local court on the basis that it should be dealt with in a military court. The Applicant claimed that in the course of preparing to lodge a second application on behalf of the Applicant, the Applicant’s lawyer was arrested on the basis he was “alleged to incite construction labourers to protest against Xin Jiang Military Region as well as local government.”
The Applicant stated that on 17 February 2007 he and another then organised an open protest by construction labourers in the central park of the city, following which the Applicant was detained for 11 days, interrogated and forced to confess his anti-government movement. The Applicant claimed he was fined and released, following which, he proceeded to draft and distribute anti government pamphlets. The Applicant stated that on 2 April 2007 three construction labourers were arrested so he left for Jiangxi province, where he hid out with a friend and then left China on 19 April 2007. The Applicant claimed that he had been told that police regarded him as “one of key leaders to organise anti-government protests including sending many anti-government pamphlets.” He also claimed that police had searched for him in his hometown and investigated his family and friends.
On 23 July 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”). The Delegate doubted the Applicant’s credibility. The Delegate found the Applicant’s information to be “broad, vague and lacking in relevant detail and contains statements that are inconsistent with other information either from the application itself or other sources.”
On 24 August 2007, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of the review application. On 9 November 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 20 December 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal decision
On 26 September 2007 the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 31 October 2007 to give oral evidence and present arguments. The Applicant attended that hearing and gave evidence.
On 31 October 2007, the Applicant gave evidence at the hearing before the Tribunal in which the Applicant expanded upon his written claims.
The decision of the Tribunal is accurately summarised by counsel for the first respondent in his written submissions as follows:
“10. The Tribunal (CB 92 to 95; see also page 17 of 18 of the Tribunal’s decision record):
a) accepted that the Applicant is a citizen of China;
b) found that the Applicant’s oral evidence before the Tribunal evolved during the hearing and contained both internal inconsistencies and inconsistencies with the statement attached to his protection visa application;
c) found that the Applicant was not a credible witness and had fabricated his story for the purposes of claiming refugee status;
d) as a result, rejected all of the Applicant’s claims concerning his reasons for departing China and did not accept that :
i. any of the claimed events took place;
ii. the army or the PSB or any Chinese authorities had any interest in the Applicant; or
iii. the authorities that the Applicant does not face a real chance of persecution in China for any reason; and
f) accordingly, was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason now or in the reasonably foreseeable future if he were to return to China.
11. As a result of its findings, the Tribunal affirmed the decision of the First Respondent’s delegate not to grand the Applicant a protection visa (CB95)”
The proceeding before this Court
The Applicant was unrepresented before this Court although had the assistance of a Mandarin interpreter. The Applicant has participated in the Panel Advice Scheme.
The Applicant confirmed that he relied on the grounds contained in an application filed on 20 December 2007.
The grounds are in a form commonly seen in this Court. The Applicant confirmed to the Court that they had been drawn by his migration agent, Mr Harry Huang. The grounds make the following bare assertions of error:
(1)The Tribunal’s decision was affected by apprehended bias.
(2)The Tribunal failed to put forward its questions fairly and misstated the Applicant’s evidence.
(3)The Tribunal failed to consider the Applicant’s claims properly and fairly.
(4)The Tribunal failed to comply with s.424A(1) of the Act.
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of his application generally. The Applicant confirmed that he had filed no evidence or submissions in support of his application.
In support of his application before this Court, the Applicant stated that the Tribunal had told him that it would write to him about inconsistencies in his evidence and give him an opportunity to comment. This complaint was made for the first time to this Court. The Applicant provided no evidence, such as a transcript of the Tribunal hearing, in support of his complaint. I note that the Tribunal stated in its decision record at the end of its summation of the claims and evidence before it the following:
“The Tribunal indicated it had gone through details which cast doubt on his credibility and the veracity of his claims. Also the Tribunal considered some of his story implausible, but the Tribunal would not decide his case on implausibilities in light of the inconsistencies. The Tribunal asked whether he wanted further time to give comments on each and every of the points. He stated he did not wish to have further time.” (emphasis added)
When the last two sentences, bolded above, were read by this Court to the Applicant, he responded that there must have been some mistranslation. However, again, the Applicant provided no evidence in support of such an allegation.
Accordingly, I am not satisfied that the Tribunal told the Applicant that it would write to him about inconsistencies in his evidence and inviting him to comment. I am also not satisfied that the Applicant’s complaint of any mistranslation is made out. The Court is entitled to accept the Tribunal’s decision record as accurately reflecting these matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1).
Ground 1 – The Tribunal’s decision was affected by apprehended bias
In support of ground 1, the Applicant referred to the Tribunal’s rejection of his evidence and its adverse credibility findings.
A fair reading of the Tribunal’s decision makes clear that the Tribunal had regard to all claims made by the Applicant, both written and oral. The Tribunal explored in detail the Applicant’s claims and evidence and put to the Applicant concerns it had about inconsistencies and changes in his evidence and noted the Applicant’s responses. The Tribunal found that the inconsistencies in the Applicant’s evidence, together with the Applicant’s “evolving and changing evidence during the hearing”, led the Tribunal to conclude that the Applicant had “fabricated the whole story for the purpose of gaining refugee status.” The Tribunal then identified with particularity those matters that led to its adverse conclusion.
The findings and conclusions made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons, including the adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J)
As stated above in these Reasons, no evidence or other submissions were made in support of the allegation of bias.
A fair reading of the Tribunal’s decision does not suggest that it approached its task other than with a mind open to persuasion.
Otherwise, ground1 is no more than a disagreement with the adverse findings of the Tribunal. Such a complaint invites merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 at 41 per Mason J)
Accordingly, ground 1 is not made out.
Ground 2 – The Tribunal failed to put forward its questions fairly and misstated the Applicant’s evidence
In support of ground 2, the Applicant stated to this Court that the Tribunal asked him irrelevant questions. The Applicant gave examples such as: the Tribunal asked him when he went to Jiangxi; how much it cost him; and, how much was the travel fare. The Applicant submitted that all these questions were irrelevant.
However, it is for the Tribunal to obtain and have regard to whatever evidence it deems to be relevant and give it such weight as it deems appropriate (Lee v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 464 at [27]). The Tribunal is not obliged to explain the relevance of any question to the Applicant.
In any event, the Applicant did not provide any evidence, such as a transcript of the hearing, in support of such a complaint.
A fair reading of the Tribunal’s decision record does not support the Applicant’s contentions that the Tribunal asked irrelevant questions, failed to ask its questions clearly or misstated the Applicant’s evidence. Nor does it suggest that the Applicant had any difficulty in understanding the Tribunal’s questions or had any difficulty in making meaningful responses (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1).
Further, the Tribunal noted that at the completion of the Applicant’s hearing it asked him whether he had anything further he wished to say in his case and noted the Applicant’s response.
Accordingly, ground 2 is not made out.
Ground 3 – The Tribunal failed to consider the Applicant’s claims properly and fairly
Ground 3 was not supported by evidence. The particulars provided in support of ground 3 are no more than an identification of findings of the Tribunal with which the Applicant did not agree.
As stated above in these Reasons, the findings and conclusions made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons. Disagreement with those findings invites merits review, which this Court cannot undertake.
To the extent that the particulars in support of ground 3 contend that the Tribunal ignored “a key point”, the particular stated that, “It is obviously that purchasing property or changing the household registration is simply for the purpose to assist me to obtain a passport in order to go to the overseas”.
A fair reading of the Tribunal’s decision makes clear that the Tribunal understood the Applicant’s claim that he changed his household registration in order to obtain a passport with a false home town in order to escape his persecutors. However, the Tribunal did not believe the Applicant’s claims of persecution and rejected comprehensively the Applicant’s claims “about the matters which led him to flee China”.
As stated above in these Reasons, the Tribunal’s findings were open to it on the material and evidence before it and for which it provided reasons
Accordingly, ground 3 is not made out.
Ground 4 – The Tribunal failed to comply with s.424A(1) of the Act
Ground 4 was not supported by particulars, evidence or submissions.
The Tribunal’s adverse findings in respect of the Applicant’s evidence were based on inconsistencies in the Applicant’s evidence and the Tribunal’s finding that the Applicant’s evidence changed and evolved during the hearing, leading the Tribunal to conclude that the Applicant had fabricated his claims for the purpose of gaining refugee status.
To the extent that the Tribunal’s decision was based on evidence given by the Applicant, such information is excluded from the obligations of s.424A(1) of the Act, by reason of s.424A(3)(b) of the Act.
In addition, “doubts, inconsistencies or the absence of evidence” are not information that enliven the obligations of s.424A(1) of the Act. The Tribunal’s adverse findings were based on its assessment and evaluation of the Applicant’s evidence and, accordingly, are not information that enlivens the obligations of s.424A(1) (SZBYR v Minister for Immigration and Citizenship and Anor (2007) 235 ALR 609 at [18]; VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 476-477).
There was no information relied upon by the Tribunal which enlivened the obligations of s.424A(1) of the Act.
Accordingly, ground 4 is not made out.
Conclusion
A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant; put to the Applicant matters about which it had concern and noted the Applicant’s responses. The Tribunal made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and applied the correct law in reaching those conclusions.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 20 May 2008