SZLVX v Minister for Immigration
[2008] FMCA 1690
•19 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLVX v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1690 |
| MIGRATION – Review of decision of RRT – where applicant claimed that his dissent to the compulsory acquisition of his property by the Chinese authorities led to persecution – where applicant provided inconsistent written and oral evidence – where Tribunal sent a s.424A letter – whether the manner in which applicant responded or failed to respond to questions constitutes “information” under s.424A – whether conclusions of Tribunal legitimately drawn from the evidence. |
| Migration Act 1958 (Cth), s.424A |
| SZBYR v Minister for Immigration (2007) 235 ALR 609 VAF v Minister for Immigration (2006) 206 ALR 471 Minister for Immigration v VOAO VOAP [2005] FCAFC 50 SFGB v Minister for Immigration [2003] FCAFC 231 QAAA v Minister for Immigration [2007] FCA 1918 SZKOB v Minister for Immigration [2007] FCA 1949 SZBEL v Minister for Immigration (2006) 228 CLR 152 SZEJF v Minister for Immigration [2006] FCA 724 |
| Applicant: | SZLVX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 10 of 2008 |
| Judgment of: | Raphael FM |
| Hearing date: | 18 November 2008 |
| Date of Last Submission: | 18 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 19 December 2008 |
REPRESENTATION
| Solicitors for the Applicant: | Dobbie and Devine Immigration Lawyers |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 10 of 2008
| SZLVX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China. He arrived in Australia on 29 March 2007 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 14 May 2007. On 18 July 2007 the delegate of the Minister refused to grant the protection visa and the applicant applied for review of that decision by the Refugee Review Tribunal on 16 August 2007. The applicant had been interviewed by the Department before its decision. On 23 October 2007 the applicant attended a hearing before the Refugee Review Tribunal. On 29 October 2007 the Tribunal wrote to the applicant a letter inviting him to comment on information that the Tribunal considered would, subject to those comments, be the reason or part of the reason for affirming the decision under review. The applicant responded to that letter by way of a statutory declaration sent on 12 November 2007. On 20 November 2007 the Tribunal determined to affirm the decision under review and handed that decision down on 6 December 2007.
The grounds upon which the applicant claimed that he was a person to whom Australia owed protection obligations appeared in a statutory declaration dated 11 May 2007 lodged with his application
[CB 24 - 28]. He claims to have arrived in Australia under a false passport but gave his correct name and address. He told that in January 2005 he opened a biscuit shop in an old house left to him by his Grandfather. In September 2006 the local government sold a large piece of land including the land where his biscuit shop was located to a real estate development company without consulting the property owners. The local authority informed the owners that they would be provided with compensation at the rate of RMB 200 Yuan per square metre which was considerably short of what they thought was reasonable. The applicant states that even this sum was not paid. He was only offered RMB 1000 Yuan and all the owners were told to leave the property within one month. They refused. In November 2006 the PSB came to the town and tried to force the demolition of all the properties including the applicant’s shop. He resisted and was thrown into a police minibus. He was detained for a week and fined RMB 5000 Yuan. He stated that he had lost everything and so between November and December 2006 he visited relevant local government agencies to try and obtain proper compensation.
The applicant deposed that in January 2007 a friend came to him to discuss the matter. He had also lost his business and property to the development company. He suggested organising a general appeal to the local government. They were organising this when they heard that a new mayor had been appointed to Fuqing City. They tried to arrange for an appointment with him to ask him for help. On 5 February 2007 the friend and the applicant led about 33 people to the Mayor’s offices. They had a petition seeking compensation at the rate of at least RMB 1000 Yuan per square metre and a request that the government create employment opportunities for them so that they could maintain the same standards of living they had prior to the compulsory acquisition of their property. They did not get into to see the Mayor. They were told he was busy but that he had contacted the relevant local authority. They returned home. But when the applicant and his friend attended the offices of the local authority they were arrested and denounced as organising an anti-government gathering. The applicant claimed that he was beaten by the police and sent to a construction site to “have his brained cleaned through labour.” With the assistance of his family he obtained the false passport and was smuggled out of the country on 26 March 2007.
At the hearing before the Tribunal the applicant was asked questions about his statement. He told that the development company ended up giving him RMB 2000 Yuan and the government gave him 1000 so that he received RMB 3000 Yuan in total for the shop. He explained to the Tribunal that his grandfather had left a house as well as the shop. The house was in a different village and he slept there if he managed to finish work early. The Tribunal questioned the applicant as to whether or not he was really a construction worker because he had told the delegate that he had been in the construction industry for some time. He said that he was not a construction worker until he was required to do the labouring. In response to a question from the Tribunal as to how he knew he was on the blacklist he told that the PSB had come to his home a few times to warn his family and they told him that he was on the blacklist and that he couldn’t travel anywhere because they would catch him. After further questioning by the Tribunal the applicant appeared to indicate that he did not know that he was on the blacklist until after he had left China.
At [CB 87] the Tribunal says:
“The Tribunal discussed with the applicant that it had information that it may consider would be the reasons for affirming the decision. It indicated that it must also explain the consequences of the information and invite you to comment on or respond to the information. It stated that he may respond to that information orally or in writing. He may also seek additional time to comment on or respond to the information. The Tribunal referred to the issues raised by the delegate in her decision.”
There then follows a précis by the Tribunal of the matters discussed.
After the hearing the Tribunal wrote to the applicant inviting him to comment on information that the Tribunal considered would, subject to any comments or responses he might make, be the reason or part of the reason for affirming the decision under review. The letter referred to country information which indicated petitioning citizens were allowed to express dissatisfaction with the actions of local officials and noted that this was inconsistent with the applicant’s claim that he had been denounced for being an organiser of an anti-government gathering. The Tribunal pointed out the inconsistency between the applicant’s claim before it that police had often questioned him and the DIAC interview where he said he was unable to recall questions that he had been asked by the police. The Tribunal again referred to the DIAC interview and referred to the applicant’s answers being vague. At [CB 65] in paragraph 6 of the letter the Tribunal wrote:
“At the DIAC interview, and the Tribunal’s hearing, the applicant confirmed that all the details in his application were correct. The applicant said to DIAC that he remained at his address in China dating from May 1997 until his departure in March 2007. He also stated to the Tribunal that his grandfather’s house was in the village, and it was not demolished. In his typed statutory declaration sworn on 11 May 2007 the applicant referred to ‘the old house left by my grandfather was about 60m2; and thus, my family should receive at leat RMB 12,000 Yuan. He then referred to not receiving that amount, but rather RMB 1,000 Yuan. He also referred to Lantian trying to ‘our properties’ thus indicating the shop and the house. Further, he stated in the statutory declaration that he has lost the old house left by his Grandfather.
The relevance of this information is that the appellant appears to have contradicted his written evidence with his oral evidence. This may lead the Tribunal to find that he did not remember the written details in relation to these matters because they did not occur. This may mean that the applicant is not a witness of truth and this may lead the Tribunal to affirm the Department’s (DIAC’s) decision.”
Paragraph 7 and 8 of the letter also referred to the applicant’s statement at the DIAC interview as did paragraphs 10, 11 and 12. The applicant responded and dealt with the departmental interview at paragraphs 10, 11 and 12 of his response [CB 73]:
“[10]At the Departmental interview, I might not be able to describe my situation owing to some mental pressure, but it is the true that the authorities told my family that I was on the black list after I had run away.
[11]At the Departmental interview, I might not quite understand the Tribunal’s question. I thought that I had been asked what I had done immediately before I had left China. At that time, I was actually punished to work at the construction site of Lantian Company.
[12]I did run a biscuit shop in China; but again, at the Departmental interview, I was very nervous under some pressure; and this I was unable to describe my particular job at the biscuit shop clearly.”
In the Tribunal’s Findings and Reasons it stated that it had listened to a tape of the DIAC hearing with the applicant and then, after setting out the applicant’s history and claims, stated that he had provided a number of inconsistent statements. The Tribunal referred first to the inconsistency between the DIAC interview when he said that he had received RMB 3000 Yuan compensation whereas in his written claims he had received RMB 1000 Yuan and noted that in his explanation he referred to a payment from the development company which he had not mentioned in his original written application. This paragraph is followed by another paragraph [CB 94] dealing with the inconsistencies in the applicant’s statements concerning how he knew his name was on the blacklist before saying:
“The Tribunal has considered the applicant’s claim regarding mental pressure on him at the DIAC hearing and rejects it. The Tribunal has listened to the tape of the applicant’s hearing with the DIAC and finds no overt evidence that there was any pressure on him at the hearing or any indication by the applicant that there was mental pressure on him. Further, his response at the DIAC hearings to the question was lucid. The problem is that it was an answer which is different to those he provided at the Tribunal hearing. In this regard his answer to DIAC did not indicate that he or any member of his family had been advised he was on the blacklist but rather there was an assumption of that being the case in the circumstances.”
The Tribunal then deals with questions put at the DIAC interview about the applicant’s work at the biscuit shop.
“At the DIAC interview, when asked to describe a day in his biscuit shop, the applicant demonstrated that he had little idea about what is involved in running a business. He was asked twice to describe a ‘typical day’ at the biscuit shop. He said that the opening hours were 7am till 7pm. He had lunch when it was a bit quiet. He opened the shop in the morning and it was his wife’s job to greet customers on the street, telling them what was available for purchase that day. He also said that business was a bit quiet during the afternoon. The applicant was then asked specific questions about the business by the DIAC officer when he did not volunteer any further information. The applicant agreed in response to the Tribunal’s s.424A letter that he was unable to describe his particular job at the biscuit shop clearly, and stated this was due to him being ‘very nervous under some pressure.’ The relevance of this information is that the Tribunal finds that a business shop proprietor should know more details about his business than the applicant provided, and as a result, it is not satisfied that the applicant worked in this capacity. The Tribunal has considered the applicant’s claim that his inability to describe his job was because he was very nervous and under some pressure. However, as discussed above, the Tribunal cannot find any evidence to support this claim. Further, he was able to respond to DIAC’s questions, but the responses lacked detail, thus indicating a lack of familiarity with running a business. This leads the Tribunal to find that the applicant was not a biscuit shop proprietor. This and the other previous findings lead the Tribunal to find that the applicant is not a credible witness and it does not accept any of his claims. These include the Tribunal not accepting that there was appropriation of the biscuit shop, protests, police issues, beatings, and forced work on a construction site.”
The Tribunal made no further comments about any of the evidence concluding that it was not satisfied that the applicant faced a real chance of persecution should he return to the PRC now or in the foreseeable future.
In his further amended application the applicant provided two grounds for arguing that the Tribunal had fallen into jurisdictional error. The first ground was:
“The Tribunal affirmed the decision under review, relying in part on information not given to it by the applicant, being the way an interview between the applicant and a delegate of the Minister was conducted and the manner in which the applicant responded to the delegate’s questions during that interview. Despite the Tribunal relying on that information as part of the reason affirming the delegate’s decision, the Tribunal did not send the applicant the invitation to comment prescribed under s.424A.
The Tribunal listened to the tape of the applicant’s interview before the delegate and found that there was no overt evidence that there was any pressure on him at the interview, or any indication by the applicant that there was mental pressure on him; and that there was no evidence to support his claim that he was very nervous and under some pressure.
The Tribunal relied on other answers given by the applicant at the interview with the delegate, and or his failure to volunteer any further information to the delegate at interview, to affirm the delegate’s decision. The Tribunal did not send the requisite s.424A notice in relation to that information.
The Tribunal found that the applicant’s response to questions from the delegate relating to his biscuit shop business showed that he was never the owner of such a business. The Tribunal did not issue the requisite s.424A notice: its s.424A notice dated 29 October 2007 merely indicated that the relevance of the information was that the applicant did not work in that capacity and that the Tribunal might dismiss his claims that the authorities were trying to acquire his biscuit shop, not that he was never the owner of a biscuit shop.”
The course of conduct applied by the Tribunal was to send the applicant the s.424A letter pointing out the inconsistencies in his testimony at the DIAC interview and explain that those inconsistencies could lead the Tribunal to come to a conclusion that he was not a witness of truth and thus to affirm the delegate’s decision. The applicant responded with explanations about the inconsistencies which did not involve the evidence but his state of mind when being asked the questions. The Tribunal then listened to the tape and came to a conclusion that there was no evidence of this state of mind and proceeded to come to a finding on the basis that these were genuine inconsistencies which indicated that the applicant was not a witness of truth. The applicant argues that the conduct of the interview by the delegate and the manner in which the applicant behaved and responded to questions (or did not respond until asked questions) was “information for the purposes of s.424A.” He also argues that in the paragraph at [CB 94] in which the Tribunal refers to the applicant’s responses at the DIAC interview to questions about the biscuit shop, the Tribunal says:
“The applicant was then asked specific questions about the business by the DIAC officer when he did not volunteer any further information.”
that those answers which were not referred to in the Tribunal decision nor mentioned in the s.424A letter were also information which should have been the subject of a s.424A letter. The respondent says that in the light of SZBYR v The Minister for Immigration (2007) 235 ALR 609 at [17] the applicant’s oral claims to the delegate cannot be said to be “information within s.424A(1)” anymore than is the written protection visa claim. The evidence does not in its terms constitute a rejection, denial or undermining of his claims to protection. The respondent argues that the transcript of the hearing before the delegate is no different to the statutory declaration referred to in SZBYR. If the applicant had been believed it would have been:
“A relevant step towards rejecting, not affirming the decision under review” SZBYR at [17].
As in SZBYR:
“The reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies therein” SZBYR at [18].
Disbelief is not “information”. Information cannot be defined as “the existence of doubt, inconsistencies or the absence of evidence” SZBYR at [18]. The respondent argues that the Tribunal’s assessment of whether the applicant was or was not nervous or under mental pressure at the interview was also a thought process and not information. If this evidence had been taken at the Tribunal level and the Tribunal had decided to write the s.424A letter (even though it was probably not required) so that the applicant’s response would have been on the lines “I was nervous when you were asking me those questions” it would never be said that the Tribunal had to issue a further s.424A letter because it had concluded from its own observations of the applicant that he was not nervous. Once it is accepted that the tape recording of the DIAC interview was evidence that the Tribunal could have used (and it has not been argued that it was not) then the Tribunal’s views as to the way in which the evidence was given cannot constitute information for the purposes of s.424A.
The second part of the applicant’s complaint relates to the further questions that the DIAC officer asked about the applicant’s business but which were not responded to. It is difficult to see how a non-response can be anything other than an identified gap in the evidence which the Full Bench, Finn and Stone JJ observed in VAF v Minister for Immigration (2006) 206 ALR 471 at [477] could not encompass information. The third particular of the first ground of the application seems to me to be based on a misreading of the Tribunal’s reasons for decision. The applicant appears to be arguing that “work in that capacity” means “work in the biscuit shop”. The s.424A letter at [CB 67] describes the relevance of the information as:
“…the Tribunal may find that a biscuit shop proprietor should know more details than this and may not be satisfied that the applicant worked in this capacity.”
To my mind “capacity” refers to a business shop proprietor. I am satisfied that the Tribunal’s use of the word proprietor, which is defined in the Macquarie Dictionary as “1) the owner of a business establishment, 2) one who has the exclusive right or title to something, and owner of property” was clearly a reference to the applicant as the owner and not as a worker.
Ground two of the application is in the following form:
“The Tribunal found that the applicant did not own a biscuit shop because of his answers to questions posed by the delegate to describe a typical day in the biscuit shop:
The Tribunal found that a business shop proprietor should know more details about his business than the applicant provided, when the Tribunal had no evidence of what a biscuit shop owner in China should be taken to know and where the questions related to a typical day in business.”
The applicant argues that the finding that the applicant demonstrated that he had little idea about what is involved in running a business [CB 94] which “leads the Tribunal to find that the applicant was not a biscuit shop proprietor” [CB 95] are not conclusions that the Tribunal could draw from evidence about what happened in a typical day in a biscuit shop. The respondent says that the applicant conceded he was unable to describe his job clearly in his response to the s.424A letter [CB 73] and this provided sufficient evidence for the Tribunal to come to the conclusions that it did. If a Tribunal makes a material finding of fact or draws an inference without probative evidence it will fall into jurisdictional error MIMIA v VOAO, VOAP [2005] FCAFC 50 per Wilcox, French and Finkelstein JJ at [5]; SFGB v Minister for Immigration [2003] FCAFC 231 per Mansfield, Selway and Bennett JJ at [19] and [30]; QAAA v Minister for Immigration [2007] FCA 1918 per Collier J at [22]. In this case only the Tribunal had the benefit of listening to the tape of the delegate’s interview. There is no obligation to do this; SZKOB v Minister for Immigration [2007] FCA 1949 per Flick J at [12]. It has not been produced in this court. The Tribunal did not ask the applicant any questions about the biscuit shop. The nearest it got to that was a question at [T13]:
“T: What I am saying to you is that you weren’t a shop owner, you were a construction worker?
A: No, my shop was taken by them, closed down by them. After being taken away by them and then released they warned me that - after being taken away by them to labour then released they warned me.”
In the report of the delegate’s decision at [CB 45] the delegate says:
“The lynchpin of his claims is a property demolished and the claim that he mobilised others which attracted adverse attention. At interview I asked him about his employment background and expertise, the applicant stated that he has been in the construction industry most of his life and spoke confidently about doing jobs like painting, renovation houses, labouring and building.
When asked to describe a day in his biscuit shop, he demonstrated that he had no idea about what is involved in running a business. I asked him twice to describe a “typical day” at the biscuit shop. He said that the opening hours were 7am till 7pm. He had lunch when it was a bit quiet and that his wife’s job was to greet customers. I am satisfied that the applicant did not work in any business (biscuits or motorbikes) and that he has been employed in construction.”
The decision of the delegate that the applicant did not “work” in the biscuit business could be justified from the responses to the questions. Working in a biscuit shop must involve more than the opening and closing hours and having lunch. It would not be unreasonable to expect that a biscuit shop worker might have some involvement with baking or if not baking then buying the biscuits, putting them in shelves or racks, creating a window display and serving. The fact that the applicant had not mentioned any of these things could lead the delegate not to be satisfied that the applicant actually worked in such a shop. The applicant would have been aware of the concern of the delegate from the written decision that was provided to him. He is taken to be on notice that this is a matter in issue to be considered by the Tribunal; SZBEL v Minister for Immigration (2006) 228 CLR 152 at [35]. These are the dispositive issues. The applicant would have been obliged to satisfy the Tribunal that the views which the delegate had come to were incorrect, presumably by persuading it both that he was well aware of what went on during the day in a biscuit shop and why he appeared to be unable to answer the question when it was put to him by the delegate. The s.424A letter written by the Tribunal raised the matter with the applicant. The Tribunal’s emphasis was on owning the business. The applicant’s response to the Tribunal in his statutory declaration, whilst explaining why he could not describe his job at the biscuit shop clearly, fails to give the evidence that the Tribunal needed for it to reach the necessary state of satisfaction. The applicant refers to “running” a biscuit shop which I take to be more that merely working in one. It is clear that he was under no misapprehension as to what the Tribunal was trying to get at. I cannot see how the applicant’s failure to provide satisfactory evidence can constitute a finding on the basis of no evidence by the Tribunal. I think the Tribunal was entitled to come to a view that the applicant’s responses lacked detail and indicated a lack of familiarity with running a business.
For the reasons given above I am unable to say the Tribunal fell into jurisdictional error in the manner in which it reached its decision in this case. The Court does have some concern that so much of the decision was based upon the interview with the Department and was not the subject of direct questioning by the Tribunal. However, it has not been suggested in the application that the Tribunal had merely adopted the delegate’s reasoning holus bolus and so failed to give “genuine and real consideration to the material before it”; SZEJF v Minister for Immigration [2006] FCA 724 at [55]. Even if it had been I do not think I could have come to such a conclusion because of the nature of the questions that were asked as evidenced by the transcript and the opportunity provided by the Tribunal in the s.424A letter for the applicant to deal with the concerns raised in the DIAC decision and interview. I dismiss the application. I order that the applicant pays the respondent’s costs which I assess in the sum of $4,500.00.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM.
Associate:
Date:
0
8
1