SZLUY v Minister for Immigration
[2008] FMCA 781
•13 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLUY v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 781 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – Protection (Class XA) visa – procedural fairness – whether breach of s.424A and s.425 of the Act – credibility – whether applicant should be given the benefit of the doubt. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 422B, 424A, 425, 474 |
| Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Abebe v The Commonwealth of Australia (1999) 197 CLR 510 Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 |
| Applicant: | SZLUY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3958 of 2007 |
| Judgment of: | Orchiston FM |
| Hearing date: | 22 April 2008 |
| Date of Last Submission: | 22 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 13 June 2008 |
REPRESENTATION
| The applicant appeared in person |
| Counsel for the Respondent: | Ms T. Wong |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application filed on 24 December 2007 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $4,300 payable within four (4) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3958 of 2007
| SZLUY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
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), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) handed down on 4 December 2007 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a Protection (Class XA) visa to the applicant.
Background
The applicant was born on 6 June 1966.
The applicant arrived in Australia on 2 May 2007 on a Chinese passport issued in her own name.
The applicant lodged an application for a protection visa on 10 May 2007 on the basis that she was persecuted due to breaching the one child policy in China. The applicant claimed that she was forced to have an abortion and was sterilised by force. The applicant also claimed that many of her possessions had been taken by the police and the doors and windows were taken from her house making it uninhabitable. The applicant claimed that she feared further persecution if she returns to China (Court Book (CB) 27-28).
On 4 June 2007 the delegate refused to grant the applicant’s protection visa on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (CB 29) (see Legislative framework).
On 9 July 2007 the applicant applied to the Tribunal for review of the delegate’s decision (CB 38).
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 (the Convention).
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 particular 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 the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceedings
On 23 July 2007, the Tribunal sent a letter to the applicant inviting her to comment on particulars of information, pursuant to s.424A of the Act (CB 45). The applicant responded to this letter on 9 August 2007 (CB 47).
On 10 August 2007, the Tribunal sent a letter to the applicant inviting her to appear before it on 18 September 2007 to give oral evidence and present arguments (CB 48). The applicant gave evidence before the Tribunal on that day (CB 52).
On 15 October 2007, the Tribunal wrote a further letter to the applicant pursuant to s.424A of the Act (CB 55-57). The applicant responded to this letter on 30 October 2007 (CB 58-62).
The Tribunal’s findings and reasons (CB 103–107)
On 4 December 2007, the Tribunal handed down its decision affirming the decision of the Minister’s delegate not to grant a protection visa to the applicant (CB 72).
I accept that the first respondent accurately summarises the Tribunal's findings and reasons as follows:
·having regard to inconsistencies within the applicant’s evidence, the Tribunal determined that the applicant was not a truthful witness and that she had fabricated her material claims in order to support her application for a protection visa (CB 105)
·the Tribunal accepted that the applicant was permitted to have a second child as claimed but that she breached the one child policy by not complying with the time spacing requirement between the two children. The Tribunal further accepted that the applicant paid a fine at some time in early 1989 (CB 105)
·the Tribunal considered that the applicant could be a member of a particular social group, such as women in China who give birth to two children within four years, or women who have breached the one child policy (CB 106). However, the Tribunal determined that the law relating to the imposition of a fine for breaching the one-child policy was a law of general application which had not been implemented or enforced in a discriminatory manner against the applicant (CB 106)
·for the reasons previously stated, the Tribunal did not accept the following claims made by the applicant (CB 106):
i)that the property of the applicant and her husband was taken from their home or that her parents-in-law’s home was damaged because of their non-payment of the fine
ii)that the applicant was forced to have an abortion or a sterilization operation
iii)that the applicant had “water testing” in the past
·the Tribunal further held that there was no real chance of the applicant facing anything which amounted to serious harm in the foreseeable future, having regard to the fact that the harm which occurred was long ago and its rejection of any claims of on-going harm (CB 107).
For these reasons, the Tribunal found there was not a real chance the applicant would suffer serious harm from her stated or perceived persecution from the Chinese authorities. The Tribunal was therefore not satisfied that the applicant had a well-founded fear of persecution if she were to return to China for reasons of being in breach of the one child policy, being a member of a particular social group, or for any other Convention reason, now or in the foreseeable future.
The proceedings before this Court
The applicant filed the application in this Court on 24 December 2007 setting out 3 grounds of review of the Tribunal’s decision.
The applicant appeared in person before this Court on 22 April 2008 with the assistance of a Mandarin interpreter. Ms Wong of counsel appeared for the first respondent.
Grounds of application
The grounds of the application are:
(1)The Refugee Review Tribunal did not provide the applicant with procedural fairness.
(2)The Refugee Review Tribunal erred in law when making the decision.
(3)The applicant has not been given the benefit of the doubt.
Ground 1 of the application
The applicant has not provided any particulars in support of her claim that the Tribunal breached its obligations of procedural fairness. Neither has she provided the Court with the transcript of the Tribunal hearing.
The obligations of procedural fairness upon the Tribunal are those set out in Division 4 of Part 7 of the Act: s 422B: Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62.
In regard to s 424A of the Act, the Tribunal wrote to the applicant prior to the hearing inviting her to comment on particular claims she had made in her protection visa application concerning the birth of her children in 1986 and 1988, and her travel to Hong Kong and Malaysia in 2006 (CB 45).
I am satisfied that this letter fully complied with the requirements of s.424A, including pointing out the relevance of the information set out in the letter and how that information may be the reason or part of the reason for the Tribunal affirming the decision that is under review.
Following the hearing, the Tribunal wrote a second s.424A letter to the applicant setting out in detail the Tribunal's concerns about the credibility of the evidence she gave at the hearing, including various apparent inconsistencies in that evidence (CB 55-57).
I am satisfied that the second s.424A letter fully complied with the requirements of that section. I accept however the submission by the first respondent that:
to the extent that the Tribunal did rely upon information provided [by the applicant] to the Department or to the Tribunal, such information falls within the exceptions stated in ss.424A(3)(b) and 424A(3)(ba).
I also note the observation of the Full Federal Court in SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [30]:
The Tribunal invited the appellant to explain the delay. She acknowledged it and offered an explanation, apparently understanding that it was in her interests so to do. The appellant submitted that if the Tribunal felt it necessary to invite an explanation, then s.424A(1) must apply. That submission has no merit. The Tribunal may, out of an abundance of caution or concern for fairness, put a particular line of reasoning to an applicant in circumstances where s.424A has no application.
In reaching its determination the Tribunal also referred in detail to what it considered was the lack of credibility of the applicant’s evidence, based on material inconsistencies between information she included in her protection visa statement and the evidence she provided to the Tribunal at the hearing, as well as inconsistencies between information she gave to the Tribunal at the hearing and in her replies to the s.424A letters.
It is clear that a proper construction of the word “information” in the context of s.424A and hence what information must be given to an applicant for comment, does not extend to the Tribunal’s subjective thought processes or appraisals of the evidence before it, including its disbelief of an applicant’s evidence: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18]:
… if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellant’s 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 appellant’s 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 & Multicultural & Indigenous Affairs 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.
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.
Equally at the forefront of the Tribunal’s thought processes and appraisals of the evidence in the present case, was the credibility of the applicant’s evidence. I consider therefore that the Tribunal was not obliged to notify the applicant pursuant to s.424A(1) of its concerns about her credibility.
In its decision, the Tribunal also set out independent information concerning the one child policy in China (CB 76-86) and in its Findings and Reasons it referred specifically to the imposition of fines for breaching the one child policy in China (CB 105). None of this information was included in either s.424A letter. However, it is clear that independent country information falls within the exception to s 424A (1) stated in s.424A(3)(a), being information which is not specifically about the applicant: see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572. In any event, the Tribunal accepted that the applicant paid a fine for breaching the one child policy at some time in 1989 (CB 105).
For the above reasons, I detect no breach of s.424A of the Act and am satisfied that the applicant was accorded procedural fairness in this regard in compliance with the statutory regime.
Similarly, I am satisfied that the Tribunal complied with its statutory obligations under s.425(1) of the Act. The Tribunal at the hearing identified and put to the applicant the determinative issues in this case, in particular the plausibility of her claims and gave her the opportunity to give evidence and make submissions thereon in accordance with the principles in SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63 at [33]–[48]. In addition, before reaching its conclusions, the Tribunal provided the applicant with a further opportunity, through the second s.424A letter, to address those identified issues.
The procedure adopted by the Tribunal clearly confirms that the applicant was given sufficient opportunity to present her case. Beyond this, as observed in SZBEL at [47]-[48], procedural fairness does not require the Tribunal to disclose its mental processes and subjective appraisals, including its disbelief of an applicant’s claims and her lack of credibility, in reaching its decision.
The procedural fairness requirements in Part 7 Division 4 deal in this regard only with the process of decision-making, not the merits of the decision. As relevantly stated in SZBEL at [25]:
what is required by procedural fairness is a fair hearing, not a fair outcome… It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes, not its actual decision.
Merely because the applicant disagrees with the Tribunal’s adverse finding of her credibility does not amount to an error of law. The Tribunal’s finding in this regard is a finding of fact par excellence and not open to review by this Court: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. It is not the function of this Court to engage in impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]). Moreover, there is no error of law, let alone jurisdictional error in the Tribunal making a wrong finding of fact: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 560 [137].
Accordingly, I detect no breach of s.425(1) and s.424A of the Act in this case. I am satisfied that the applicant was accorded procedural fairness by the Tribunal in accordance with the statutory framework of the natural justice hearing rule under the Act.
In conclusion, I consider that a fair reading of the Tribunal’s decision record makes it clear that the Tribunal understood the nature of, and set out a detailed and closely reasoned analysis of, the applicant's claims; explored those claims with her through the two s.424A letters as well as at the Tribunal hearing; identified the determinative issues and gave her sufficient opportunity to give evidence and make submissions on those issues at the hearings; and closely noted the applicant's responses. The Tribunal further had regard to independent country evidence; and then made findings based on all the evidence and material before it.
I consider that its findings of fact, in particular as to the applicant’s adverse credibility, were open to it on the evidence and material before it; that it provided well-articulated and detailed reasons for rejecting the applicant’s claims; that it applied the correct law to those findings; and reached its conclusion that the applicant was not a person to whom Australia has protection obligations, based on those findings. In these circumstances, I am satisfied that the Tribunal complied with the statutory regime in the making of its decision and performed the task required of it in accordance with law.
Accordingly, for the reasons stated above, Ground 1 of the application is rejected.
Ground 2 of the application
The applicant has not provided any particulars in support of her claim that the Tribunal erred in law when making the decision.
At the commencement of its decision, the Tribunal correctly set out the principles of law that applied to its determination (CB 74-76). I detect no error on the face of the Tribunal's determination as to the manner in which the Tribunal applied those principles to the applicant’s claims.
I have already determined under ground 1 above, that the Tribunal did not err in law in regard to complying with the procedural fairness requirements of the Act.
Accordingly, for the reasons stated above, Ground 2 of the application is rejected.
Ground 3 of the application
The applicant has not provided any particulars in support of her claim that she has not been given the benefit of the doubt.
It is well settled that there is no onus of proof generally in administrative matters. However, although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. As stated by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76]:
In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.
Also, a decision-maker is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-70; SZBEL at [40]; WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73]. As observed by the High Court in Abebe v Commonwealth at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
It is also the case that in assessing the applicant’s credibility, the Tribunal must be sensitive to the difficulties often faced by applicants and should give the benefit of the doubt to those who are generally credible, but are unable to substantiate all of their claims.
However, a Tribunal is not required to uncritically accept any or all of the allegations made by the applicant: Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451-2. Also, as Heerey J observed in Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7]:
A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.
In the present case, the Tribunal, after consideration of the evidence as "a whole", found that "the applicant is not a truthful witness and that she has fabricated her material claims in order to support her application for a protection visa"(CB 105).
As already dealt with under ground 1 above, I consider that in reaching this conclusion, the Tribunal very carefully considered the applicant’s claims and gave detailed reasons for rejecting her as a witness of truth, including setting out the numerous inconsistencies in her evidence. It was not a situation where the Tribunal found that the applicant's claims were generally credible, thereby raising the issue whether the Tribunal should have given her the benefit of the doubt where she was unable to substantiate all of her claims.
Also, as stated under ground 1 above, merely because the applicant does not agree with the Tribunal’s findings as to her credibility, does not constitute an error of law and it is not the function of this Court to engage in impermissible merits review.
Accordingly, for the reasons stated above, Ground 3 of the application is rejected.
Conclusion
The Court finds that 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 application before this Court is dismissed.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 13 June 2008
0
17
2