SZLVI v Minister for Immigration
[2008] FMCA 1206
•29 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLVI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1206 |
| 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 “SZLVI”. |
| Migration Act 1958 (Cth), ss.91X, 422B, 424, 424A |
| Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration & Multicultural v Lay Lat (2006) 151 FCR 214 Minister for Immigration & Multicultural Affairs; Re; ex parte Durairajasingham [2000] HCA 1 SZBYR v Minister for Immigration (2007) 81 ALJR 1190 SZCIG v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62 SZIZO v Minister for Immigration & Citizenship [2008] FCAFC 122 SZKCQ v Minister for Immigration & Citizenship [2008] FCAFC 119 |
| Applicant: | SZLVI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3980 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 7 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 29 August 2008 |
REPRESENTATION
| Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Counsel for the Respondents: | Ms A. Nanson (solicitor) |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 28 December 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 3980 of 2007
| SZLVI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant was born in 1959 and claims to be from Shanghai, the People’s Republic of China. He speaks, reads and writes Mandarin.
The applicant claims that his local government and a property developing company called Songyang forced him to sell the land his home was on to build a shopping centre. He was offered a small amount of money in compensation. The applicant and a neighbour appealed to the local government to no avail. Furthermore he claims Songyang paid people to go to his home, threaten his family, and assault him and his father. When he reported this to the police they said he was causing trouble.
The applicant then organised a group for the protection of property rights. Its members were from his neighbourhood who also had their homes taken from them by force. The applicant states that the local police noticed him and warned him that his family would be injured or he would be jailed if he continued to appeal. He claims he and his wife were followed, his father’s health worsened and he subsequently passed away. The applicant decided to leave his family and come to Australia because he was living in fear
The applicant arrived in Australia on 22 April 2007 and applied to the Department of Immigration for a Protection (Class XA) visa on 17 May 2007. A delegate of the Minister refused to grant the visa on 27 July 2007. The applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of the delegate’s decision on 24 August 2007. On 27 November 2007 the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa and it is this decision (reference number 071673918) which is the subject of judicial review before this Court.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A” and is the only evidence before the Court.
At the first Court date on 5 February 2008, the applicant indicated that he wished to participate in the scheme that gives unrepresented applicants in refugee matters independent legal advice on the prospects of success of their appeal. The applicant was allocated a panel advisor and the Court file indicates he received the advice.
The applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon by 9 April 2008. This order was not complied with. An order was also made for the applicant to file and serve a short outline of submissions and list of authorities fourteen days prior to the hearing. This order was also not complied with.
The Tribunal hearings
On 16 October 2007, the applicant attended a hearing before the Tribunal. On 17 October 2007, the Tribunal issued an “Invitation to Comment On / Respond to Information in Writing” pursuant to the provisions of s.424A of the Act. This letter set out a number of issues of concern relating to the inconsistent evidence between that contained in the applicant’s initial application and that given at the hearing. That evidence related to the address of the house said to have been demolished and the events concerning the actions of the development company and police. Also contained in that letter were a number of additional claims raised by the applicant during the hearing before the Tribunal which were not included in the initial application or supporting material.
The Tribunal held a second hearing on 9 November 2007 at which the applicant appeared. The Tribunal put to the applicant the inconsistencies set out in the “Invitation to Comment” letter issued on 7 October 2008. At the request of the applicant further time was allowed for him to provide a more detailed response in writing. Following the hearing the applicant wrote to the Tribunal confirming evidence in relation to the address of a house which was demolished, the compensation he was paid and the development of the land. The applicant also sent two statements from persons who claimed to know about the applicant and his difficulties in China (CB 76-81).
Tribunal’s findings
The Tribunal found that the applicant’s evidence in relation to the demolished property, the compensation offered and his subsequent living arrangements contained a number of inconsistencies. This led the Tribunal to conclude the applicant’s claims lacked credibility and that his property had not been demolished (CB 99.8). The Tribunal found that inconsistencies in the evidence given by the applicant as to whether he and his father were attacked, where this took place and who called the police led the Tribunal to conclude that none of these subsequent incidents in fact occurred (CB 100.2).
In respect to the matters which had not been included in the applicant’s initial statement but subsequently raised during the hearing, the Tribunal considered that if they had occurred then the applicant would have mentioned them in his statement. The Tribunal took into account the statement given by the applicant’s witnesses but, in light of its concern with the applicant’s failure to mention these incidents and the finding in relation to the applicant’s credibility, it placed no weight on these statements (CB 101).
In the Tribunal’s “Findings and Reasons” after reviewing all of the material it concluded:
The Tribunal does not believe any of the events that the applicants have stated occurred to him including the alleged events in 1985 and 1989 and it does not believe that he has been targeted in any way or mistreated at any stage as a result of the alleged demolition of his property. Given that the Tribunal does not believe that the applicant has faced any of the alleged difficulties as a result of the alleged demolition, the Tribunal does not believe that there is any chance that the applicant would be harmed now or in the foreseeable future. (CB 101.6)
Consideration
Although the applicant had failed to file any written submissions he did accept the invitation to make oral submissions in support of his claims when invited. The applicant identified that there were a number of inconsistencies in the statement that was attached to his original visa application. He stated this was because his registered migration agent, Qian Wei Ming who prepared his Protection visa application, had made a mistake in respect to the address. The applicant indicated that the details provided to the Tribunal at the hearing were either different from or not contained in the original application because of this misunderstanding.
The applicant stated that the migration agent was only charging a low fee and consequently could only prepare limited material for the application. The applicant then provided an alternate explanation for the inconsistency in respect to the address of the demolished premises. He indicated that the error may have arose from the interpreter service provided at the hearing. He claims that he did not understand that there was any issue in respect to the address of the demolished premises because this query was forwarded to the migration agent.
The applicant indicated that the Court Book and all of the correspondence had been forwarded to the agent but that there was insufficient time for the applicant to ask other people to read the documents and translate the contents of the documents into Mandarin. The applicant also indicated that he had problems in expressing himself which may have led to some misunderstanding during the translation process carried out by the agent. The applicant stated that at the hearing he clearly expressed his claim that the property in Shanghai had been demolished.
The applicant made no attempt to address any of the grounds contained in his application to this Court. He did indicate that there were problems with the written submissions filed by the respondents but this complaint was not elaborated upon and there was no indication as to the objection that he had to those submissions.
Grounds of review
1. Jurisdictional error has been made. RRT take the cases which are against me. They did not take the successful case to support me.
2. Procedural fairness has been denied.
3. RRT did not take important to my evidence.
In the absence of particulars or any submissions to clarify what the applicant is endeavouring the raise in respect to the Tribunal decision is unclear. Grounds one and three appear to be a complaint with the Tribunal’s findings because they were adverse to the interests of the applicant. The complaint appears to be that the Tribunal did not accept the applicant’s evidence. The Tribunal’s adverse credibility finding and the consequent rejection of the applicant’s claims is a matter for the Tribunal par excellence: Minister for Immigration & Multicultural Affairs; Re; ex parte Durairajasingham [2000] HCA 1 per McHugh J at [67] where his Honour stated:
… a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence…
I am satisfied that the Tribunal’s finding in this respect was open to it on rational grounds on the material before it and discloses no error in its treatment of the applicant’s credibility: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547. The Tribunal’s reasons for decision, which is the only evidence before the Court in relation to the conduct of the hearing, indicates the concern it had about aspects of the applicant’s evidence and which it raised with him during both of the hearings and in the letters forwarded under the provision of s.424A. 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 two adopts a precedent frequently seen in this Court which shows little thought as to the relevance to the particular case, and contains no particulars of general allegation which would make it meaningful. The matter was first heard by the Tribunal on 16 October 2007 which is well after 4 July 2002 the date in which s.422B was owed to the Act and inserted as part of Division 4 of Part 7 of the Act. In respect of s.422B and its equivalent provisions of other parts of the Act the full court of the Federal Court said in Minister for Immigration & Multicultural v Lay Lat (2006) 151 FCR 214 at [66] that sections found in Division 4 of Part 7 of the Act provide a comprehensive procedural code containing detailed provisions for procedural fairness which include the common law rule of the natural justice hearing rule. The application of that reasoning to s.422B was especially adopted by the same full court bench in SZCIG v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62.
In the absence of particulars, hearing transcripts or any submissions as to what the claim of the denial of procedural fairness encompassed, it is difficult to see what is the basis of the applicant’s complaint. The Tribunal’s reasons disclosed that each of the matters were put to the applicant for comment at the two hearings before the Tribunal and in this letter sent pursuant to s.424A of the Act. The applicant was thereby forwarded an opportunity to put his case before the Tribunal, to comment on adverse information of concern to the Tribunal and provide further evidence in response. In these circumstances on the face of the decision record there was no breach of procedural fairness. To the extent that the Tribunal’s decision rested upon inconsistencies arising out of evidence it is well established that such disbelief does not constitute “information” within the meaning of s.424A(1)(a) required that it be put to the applicant for comment: SZBYR v Minister for Immigration (2007) 81 ALJR 1190.
In SZKCQ v Minister for Immigration & Citizenship [2008] FCAFC 119 Buchanan J (Stone and Tracey JJ agreeing) stated at [51]:
... Outside the oral hearing the scheme of Div 4 of Pt 7 of the Act appears to me, in various ways, to establish as a necessary procedure that certain steps must be taken in writing. It does so in the context set by s 422B which provides that the Division ‘is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with’. Significance and weight must therefore be attached to the safeguards for applicants which the procedural requirements, particularly those in ss 424, 424A and 424B, represent.
On a fair reading of the Court Book and the Tribunal’s decision the Tribunal complied with this obligation.
In SZIZO v Minister for Immigration & Citizenship [2008] FCAFC 122 per Moore, Marshall and Lander JJ their Honours review the requirements of s.422B in general terms that [34]-[43]:
[34] Division 4 imposes a number of obligations upon the Tribunal in satisfaction of the natural justice hearing rule. First, it permits the Tribunal to get any information that it considers relevant but, if the Tribunal gets such information, the Tribunal must have regard to it in making a decision. The Tribunal is obliged, pursuant to s 424A, to give to the visa applicant particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review and to ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review and invite the applicant to comment on it. The information and invitation must be given to the applicant who is not in immigration detention by one of the methods specified in s 441A: s 424A(2).
[35] If a person who is invited under s 424 to give additional information, or invited under s 424A to comment on information, does not give the information or comment before the time for giving it has passed, the Tribunal can then make a decision on the review without taking any further action to obtain the additional information or comment: s 424C(1) and (2).
[36] Section 425 obliges the Tribunal to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review: s 425(1). However, no invitation need be given if the Tribunal considers that it should decide the review in the applicant’s favour; or the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or s 424C(1) or (2) applies to the applicant. No invitation need issue to an applicant who has previously been asked to provide information or comment but not responded.
[37] Where an applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear: s 425A(1). If the applicant is not in immigration detention, the notice must be given to the applicant by one of the methods specified in s 441A: s 425A(2)(a). The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period: s 425A(3). The notice must contain a statement of the effect of s 426A: s 425A(4); and notify the applicant both that he or she is invited before the Tribunal to give evidence and of the effect of s 426(2): s 426(1).
[38] Section 426 permits the applicant, within seven days of receiving a notice under s 425A, to request the Tribunal to obtain oral evidence from a person or persons named in the notice: s 426(2). Although the Tribunal must have regard to the applicant’s wishes in that regard, the Tribunal is not required to obtain evidence from a person named in the applicant’s notice: s 426(3).
[39] If an applicant who is invited under s 425 to appear before the Tribunal does not appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it: s 426A(1).
[40] Section 427 invests the Tribunal with powers for the purpose of the review of a decision. The Tribunal is empowered to take evidence on oath or affirmation; to give information to the applicant and to the Secretary of the Department; to require the Secretary to arrange for the making of any investigation or any medical examination that the Tribunal thinks necessary, and to give the Tribunal a report; and to adjourn the review from time to time.
[41] The Tribunal may summon a person to appear before the Tribunal or summon a person to produce documents to the Tribunal: s 427(3). It may require a person to give evidence either on oath or affirmation and administer an oath or affirmation to a person appearing: s 427(3)(c) and (d). The Tribunal may allow a person to appear before it by telephone, closed-circuit television or any other means of communication: s 429 A.
[42] The Tribunal may authorise a person mentioned in s 428(1) to take evidence on oath or affirmation: s 428(1). The power to authorise may be exercised inside or outside of Australia and upon such terms of limitation as are specified by the Tribunal: s 428(2). A person so authorised has all of the powers of the Tribunal under s 427(1) and the power to administer an oath or affirmation: s 428(3).
[43] The hearing of an application for review by the Tribunal must be in private: s 429.
I am satisfied that on a fair reading of the material before the Court which is limited to the Court Book and the decision record that each element of Division 4, Part 7 has been complied with to the extent that it is able to assess that compliance in the absence of particulars, transcripts or submissions. In the circumstances I am satisfied that the grounds of review should be rejected.
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 and the court file confirmated that the applicant attended the conference and received advice. The applicant was granted leave to file an amended application at the date of the hearing and that order was not complied with. The applicant 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 original Protection visa application. The applicant made oral submissions but these were in effect amplifications of his original grounds with an attempted explanation for some misunderstandings that had led to the Tribunal’s concern with inconsistencies in the applicant’s evidence. Unfortunately the applicant did not make any meaningful submissions other than to make a request that the matter be remitted back from this Court so that he could further explain his claim. The places an obligation on the Court to independently consider whether argument based on material before the Court leads to a 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 applicant have been satisfactorily addressed. I agree with the 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 claim should be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
29 August 2008
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