SZLXE v Minister for Immigration
[2008] FMCA 467
•14 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLXE & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 467 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China by corrupt officials – applicant not believed – no reviewable error found – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424A, 424AA, 425 |
| SZBYR v Minister for Immigration (2007) 235 ALR 609 SZLTC v Minister for Immigration & Anor [2008] FMCA 384 |
| First Applicant: | SZLXE |
| Second Applicant: | SZLXF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 119 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 14 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 14 April 2008 |
REPRESENTATION
The Applicants appeared in person
| Counsel for the Respondents: | Mr J D Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 119 of 2008
| SZLXE |
First Applicant
SZLXF
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 20 December 2007. The Tribunal affirmed a decision of a delegate of the minister not to grant the applicants protection visas. The applicants are from China. The relevant protection visa claims were made by the first applicant, the applicant husband. The second applicant is his wife. The background facts relating to the applicants' arrival in Australia, their protection visa claims and the Tribunal decision on them are set out in the minister's written submissions filed on 4 April 2008. References in this judgment to the applicant are references to the first applicant. I adopt, with minor amendments, for the purposes of this judgment the background statement appearing at paragraphs 2 through to 6 of the Minister's written submissions:
The applicants are husband and wife who arrived in Australia on 20 May 2007 and lodged an application for a protection visa on 1 June 2007. The first named applicant, the husband, claimed that he feared persecution in China for 2 reasons:
First, his political opinion; and secondly, his membership of the SHE minority ethnic group. As to the first, he claimed that he had been targeted by authorities because he had discovered corrupt activities in his workplace and was detained and tortured as a result. Further, he claims to have organised a group of farmers to protest at their treatment at the hands of a corporation.
On 8 August 2007, a delegate of the Minister refused to grant the applicants a visa basically because he did not accept the husband’s claims as credible. On 6 September 2007 the applicants applied to the Tribunal for review of that decision. The applicants attended a hearing conducted by the Tribunal and gave evidence in relation to the issues arising on the review. The Tribunal handed down its decision on 20 December 2007 affirming the decision of the delegate.
Tribunal’s decision
The Tribunal did not accept the husband’s claims. It gave six reasons for this: first, the husband gave little detail in respect of his discovery of the corrupt practises; secondly, the husband gave inconsistent and unconvincing explanation for delay in dealing with the corruption; thirdly, he could give no detail about his activities when he returned home from his employment; fourthly, the husband gave little detail about what he did in organising a protest by farmers; fifthly, the treatment at the hands of the authorities after the applicant husband had organised the farmers and was, according to the Tribunal, not credible; and sixthly, the applicant husband’s evidence was inconsistent with that of his wife at the hearing.
The Tribunal did not accept any of the applicant’s claims and so concluded that he was not a person to whom Australia owed protection obligations. For this reason, neither the applicant husband nor his wife satisfied the criteria for the grant of a visa and the Tribunal affirmed the decision under review.
The applicants rely upon their show cause application filed on 16 January 2008. The application asserts that there was an error of law in the Tribunal's decision constituting a jurisdictional error and that there was a procedural error in the Tribunal's decision constituting an absence of natural justice. The particulars assert bias. Further, the applicants contend that the Tribunal ignored or failed to consider a claim made to it and ignored important evidence which was before it. The applicants assert that the Tribunal misunderstood the protection visa claims or made a mistake in relation to an important finding of fact and that the Tribunal failed to give the first applicant an opportunity to comment on a matter.
The application is supported by a short affidavit identifying the first applicant an annexing a copy of the Tribunal reasons. I also have before me as evidence the court book filed on 13 February 2008. In a directions hearing on 7 February 2008 I gave the applicants the opportunity to amend their application and to file additional affidavit evidence, including a transcript of the Tribunal hearing. They did not take up either opportunity.
Only the first applicant, the applicant husband, made oral submissions at the trial of the matter today, although both applicants were present. In his submissions the first applicant sought to overcome the difficulties which the Tribunal expressed about his claims. As I explained to him, those submissions were directed at the merits of the Tribunal's decision rather than the validity of it. I pressed the applicant to identify the facts or circumstances supporting his claim of bias. He referred to unclear questions or questions he was not given an adequate opportunity to deal with. However, there is no evidentiary foundation for his allegations.
On the contrary; it appears from the record of the Tribunal decision that the Tribunal went out of its way to attempt to ensure that the hearing opportunity was a fair one. In its reasons (court book, page 88) the Tribunal identified a process of disclosure engaged in in purported compliance with s.424AA of the Migration Act 1958 (Cth) (“the Migration Act”). The presiding member stated:
During the hearing, the Tribunal put to the applicants, particulars of information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. The Tribunal explained why the information was relevant to the review and the consequences of the information being relied on in affirming the decision under review. The Tribunal invited the applicants to comment on or respond to the information. This information and the applicants' comments are summarised in the paragraphs above. The Tribunal asked the applicants if they wished to seek additional time to comment on or respond to the information. The applicants stated that they did not wish to seek additional time.
It appears that the reference to the "paragraphs above" is a reference to the paragraphs in the Tribunal's reasons, commencing immediately under the heading, "Applicants' Evidence", on page 85 of the court book. It appears from those paragraphs that the Tribunal discussed in detail with the first applicant his evidence and explained the Tribunal's difficulties with that evidence. It appears that the Tribunal engaged in the same process with the second applicant.
Further, the Tribunal states in the last paragraph (court book, page 87):
The Tribunal put to the applicant that his wife's evidence was inconsistent with his evidence. She had not mentioned that he had been arrested; she had initially stated that he was going to work between March and July 2006 when he had claimed he was at home; and she could not remember how often he was required to report to the police. The applicant stated that his wife's memory was less stable.
It follows and I find that, not only did the Tribunal put to each applicant the difficulties it had with their individual evidence, the Tribunal also put to the first applicant, who had made the relevant claims, inconsistencies between his evidence and that of his wife.
The Tribunal may have gone further than what was necessary for the purposes of s.424AA given that, as I have stated previously[1], the term "information" in s.424AA(a) carries the same meaning as in s.424A(1)(a): SZBYR v Minister for Immigration (2007) 235 ALR 609 at [17]. I do not rule out the possibility that the Tribunal's obligation to ensure a fair hearing under s.425 extended to putting to the principal applicant inconsistencies between his evidence and that of his wife. If there was such an obligation then it was met by the prudent process of disclosure embarked upon by the Tribunal pursuant to s.424AA. I see no jurisdictional error in the Tribunal's approach.
[1] SZLTC v Minister for Immigration & Anor [2008] FMCA 384 at [18]
In other respects I agree with and adopt for the purposes of this judgment the Minister's written submissions in paragraphs 7 through to 13 of those written submissions:
First Ground: Error of law
This ground is not particularised and should be rejected. In any event, the Tribunal’s decision turned upon findings of fact, namely that the applicants’ claims were not credible.
Second Ground: Denial of natural justice
The applicant raises a number of matters under this heading, the first of which is bias. This allegation appears to be based upon the assertion that the Tribunal never made any genuine attempts to ensure that the applicants understood the issues raised in the application. The difficulty facing the applicants in this respect is that the only evidence of what occurred at the Tribunal’s hearing is set out in its decision in the Court book. Thus, there is nothing to contradict the Tribunal’s statement, for example, that it “put to the applicant that it was not credible that he was arrested and detained in April 2006 for 4 months for simply writing 2 letters, yet he was not even questioned for organising a protest, which appeared to be a more serious offence, given his claim to previous record”: CB86.10. It is clear that the Tribunal raised with the applicant each of the 6 matters that ultimately formed the basis for its decision: CB85.10-88.1. In the absence of evidence to rebut the assertions made in the Tribunal’s Statement of Reasons, those assertions should be accepted and this ground should be rejected.
The second particular is a reasonable apprehension of bias. There are six bases for this particular. The first is that the Tribunal did not have the most basic knowledge about the actual situation in China. This is an assertion of fact that is not proven. Further, even if the Tribunal did not have basic knowledge about the situation in China it would not support a claim for apparent bias.
The second basis is the applicant husband was misled by the Tribunal. There is no evidence to support this. The relevant passage in the Statement of Reasons is at CB86.2. There is nothing in that passage that indicates that the Tribunal was acting in anyway that may reasonably mislead any person, let alone that it was acting in a way that might cause a reasonably informed bystander to think that the Tribunal may have prejudged the application.
The third basis of this particular relates to the Tribunal’s reasoning regarding the “social investigation” claimed by the applicant husband. In reality, this complaint is no more than a complaint about the merits of the Tribunal’s reasoning. The Tribunal’s findings were based upon the applicant husband’s evidence given at the hearing, and in this respect, his inability to explain what he meant by “social investigation” for his employer. In the application, the applicants merely restate what the written claims had been in support of the protection visa application. That does not support any claim of apparent bias.
The next basis is similar to the last, being no more than factual assertions and complaint about the merits of the Tribunal’s reasoning. The final two bases were the Tribunal failed to carefully assess the applicants’ claims and the fact that the applicant wife was nervous before the hearing and might make some mistakes. Neither of these is established on the facts and in any event do not support any finding of apparent bias.
The third particular of the natural justice ground contains a number of broad assertions apparently summarising all of the above grounds. For that reason, it does not need separate consideration.
I further find, in relation to what may have been intended to be an independent ground, numbered 3 in the application, that no elements or integers of the applicants' claims was overlooked by the Tribunal and neither was any relevant material overlooked. The Tribunal did not misunderstand the applicant's claims. It simply did not accept them. The Tribunal gave a fair opportunity to the applicants to comment on all the matters that were of concern to the Tribunal.
It follows that the Tribunal decision is a privative clause decision and the application must be dismissed.
The application having been dismissed, costs should follow the event. The Minister seeks costs in the sum of $5,600. Scale costs in this instance would be $5,000. The first applicant indicated that he might need time to pay. I see no reason to depart from the Court scale in this matter. I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 16 April 2008
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