SZLXI v Minister for Immigration
[2008] FMCA 759
•26 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLXI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 759 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of China – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.424A, 424AA ,425 |
| SZLXE & Anor v Minister for Immigration & Anor [2008] FMCA 467 SZLTC v Minister for Immigration & Anor [2008] FMCA 384 SZBYR v Minister for Immigration [2007] 235 ALR 609 Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham (2000) HCA 1 SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63 |
| Applicant: | SZLXI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 129 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 26 May 2008 |
| Date of Last Submission: | 26 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 26 May 2008 |
REPRESENTATION
| Applicant: | Appeared in person |
| Counsel for the Respondents: | Ms Sirtes |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $4,700.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 129 of 2008
| SZLXI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of China. By his application filed on 17th January 2008, he asks the Court to review a decision of the Refugee Review Tribunal that affirmed a decision of the delegate of the Minister not to grant him a Protection (Class XA) visa.
The Applicant's claims are set out in an amended application dated 26th March 2008. It appears that this amended application was never filed at the Court Registry, but I grant leave to file the application in Court and to rely on it at the hearing. I note that the lawyers for the Minister have received a copy of the amended application from the solicitor on the New South Wales Refugee Review Tribunal Legal Advice Panel.
The one ground relied on in the amended application is that the Tribunal committed jurisdictional error by failing to comply with the requirements of s.424AA of the Migration Act 1958.
The First Respondent, the Minister for Immigration and Citizenship, has filed a Response claiming that the application for judicial review does not establish any jurisdictional error.
Background
The background to this matter is that the Applicant arrived in Australia on 7th July 2007. He applied for a Protection (Class XA) visa on 20th August 2007. He claimed to have served in the Chinese army until 1985 and to have later run a small business. He claimed that he was a victim of corruption visited on him by corrupt officials from various government agencies.
In April 2007, the Applicant claimed he learned from his friend, a Mr Yang, that Tiahu Lake was affected by blue-green algae which is dangerous to the environment and to humans. Mr Yang sought the Applicant's help because local officials were trying to cover up this information. The Applicant distributed copies of a report prepared by Mr Yang, who was subsequently arrested.
The Applicant organised a group of demobilised soldiers to send petitions to different government agencies, urging authorities to release Mr Yang. He further organised propaganda materials and the PSB attempted to arrest him for distributing anti-government propaganda material. He claims that several of his friends had been detained and that he had been accused of the crime. He claimed that he had left China by flying out of Shanghai and travelling to Australia.
A delegate of the Minister considered his application but was not able to accept the Applicant's claims. The delegate said:
"I do not accept the applicant's claims as either plausible or credible. Accordingly I do not accept he will be subject to persecution on account of his actual or imputed political opinion should he now return to China.”[1]
[1] See Court Book at page 36
The delegate refused the application for a visa on 31st August 2007.
Application for Review by the Refugee Review Tribunal
The Applicant then, with the assistance of a migration agent, applied to the Refugee Review Tribunal for a review of the delegate's decision. The Tribunal received the application for review on 28th September 2007. No additional information was provided with the application for review.
The Tribunal wrote to the Applicant on 15th October 2007 inviting him to attend a hearing. The hearing was scheduled to take place on 20th November 2007. The Applicant's migration agent forwarded a Response to Hearing Invitation indicating that the Applicant did wish to attend the hearing with the assistance of an interpreter in the Mandarin language.
The Applicant attended the hearing on 20th November 2007. He gave evidence with the assistance of a Mandarin interpreter. He provided his passport to the Tribunal and he provided some photographs of himself in army uniform. He also provided a medal, which he had received for his military service.
At the hearing, the Tribunal asked the Applicant a number of questions about his application. The Tribunal signed its decision on 10th December 2007, and handed the decision down on 20th December 2007.
The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa. A copy of the Tribunal decision record can be found at pages 66 through to 78 of the Court Book. In the decision record, the Tribunal sets out the Applicant's original claims and evidence and provided a detailed summary of the Applicant's evidence at the hearing.
The Tribunal then considered Independent Country Information on the following subjects:
i)Corruption in the PRC;
ii)Actions to assist whistle-blowers;
iii)Military service.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons are set out on pages 75 through to 78 of the Court Book. The Tribunal accepted that the Applicant was a national of China based on his valid Chinese passport and his claims to be a national of that country. The Tribunal accepted that as the owner of a business, which was successful, the Applicant may well have been the subject of demands for bribes. However, the Tribunal did not consider the conduct of the officials who demanded bribes amounted to persecution within the meaning of s.91R of the Migration Act.
The Tribunal noted the Applicant's claims that he was a successful businessman, but also noted that the Applicant said that his funds had been temporarily frozen. The Tribunal asked the Applicant about his financial circumstances, and noted that the Applicant had sent his child to Australia to study in this country, which would require access to funds.
The Tribunal did not accept that the Applicant's funds had been temporarily frozen, and found that he was not suffering any financial hardship. The Tribunal gave this reason:
"When the Tribunal sought to discuss with the applicant his financial position, the applicant's evidence was evasive, implausible and changed during the course of the evidence given.”[2]
[2] See Court Book at page 75
The Tribunal went on to find that if the Applicant were forced to pay bribes to corrupt officials in China, that fact did not give rise to significant hardship threatening the Applicant's capacity to subsist in a livelihood and did not remove his ability to earn sufficient funds to support him. The Tribunal noted the Applicant's evidence that he ran a successful business, and was able to support his family and support a son living in Australia on a student visa.
Accordingly, the Tribunal found that any payments or bribes that the Applicant had to pay to corrupt officials did not amount to serious harm for the purpose of s.91R of the Migration Act and did not amount to persecution within the meaning of the Refugees Convention.
The Tribunal noted the Applicant's claims to have assisted his friend Mr Yang in respect of the harm to the environment done to LakeTiahu. The Tribunal set out in some detail on page 76, the nature of the Applicant's claim and reported that he had discussed Independent Country Information with him about his concerns over corruption shown by the relevant officials. In respect of that issue, the Tribunal made this finding:
"The Tribunal finds that the applicant did not effectively seek State protection against corrupt officials. The Tribunal finds that had the applicant sought help, effective protection would be offered to him. The Tribunal is satisfied that the authorities have put in place measures to protect whistleblowers that are at risk, part of their protection is making a website available to Chinese villages so they could avoid local authorities. Independent country information indicates that the Chinese authorities are eager to reduce official corruption and to take extensive and wide-ranging steps in doing so. The Tribunal finds that effective state protection is available to the applicant in China.”[3]
[3] See Court Book at page 76
The Tribunal noted the Applicant's claim that he would come to the attention of the authorities as a demobilised soldier, but noted that the Applicant was not able to elaborate why he would be at any special risk for that reason, except to say that the Chinese authorities were wary of demobilised soldiers.
The Tribunal did not accept that the Applicant and his other army comrades may have been at any risk or any interest to the authorities, in that they are demobilised over 20 years previously. The Tribunal did not accept the Applicant's claim that he had participated and organised in a protest against the authorities. It found there was no risk to the Applicant in being a demobilised soldier, or inciting demobilised soldiers to protest against the government.
The Tribunal noted the Applicant's claim that he had been warned that he was about to be arrested, and that he left China legally through Shanghai Airport.
The Tribunal stated that he had discussed Independent Country Information on exit procedures on China and did not accept that the Applicant would have been able to leave China legally in those circumstances. The Tribunal did not accept the Applicant's claim that his funds had been temporarily frozen, and found that the Applicant had given inconsistent evidence in relation to his finances. The Tribunal did not accept that the Applicant had organised a demonstration that had him on a secret list that was available to authorities all over China.
The Tribunal was not satisfied that there was a real chance that the Applicant was at risk due to his belonging to any particular social group, and was not satisfied that there was a real chance the Applicant was at risk due to his being part of any political movement or holding any political opinions, other than either his own opinions or implied opinions.
The Tribunal did not accept the Applicant would have been able to leave the country legally with a passport in his own name if he was sought by authorities, and did not accept that he was at any adverse interest to the authorities in China. The Tribunal did not accept that the Applicant had had or was perceived to have had any association with demonstrations or petitions against corruption and did not accept that he had any implied political opinion or was part of a particular social group of persons who had signed petitions.
The Tribunal did not accept that the Applicant had a genuine fear of persecution if he were returned to China, and was not satisfied that he had a well-founded fear of persecution for a Convention reason if he were to do so. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
The Applicant commenced proceedings in this Court for judicial review on 17th January 2008. In his amended application, he claims that the Tribunal committed jurisdictional error by failing to comply with s.424AA of the Migration Act. The particulars of that claim are:
“That the Tribunal rejected the Applicant's evidence that his funds in the People's Republic of China had been temporarily frozen, and found that he would not suffer financial harm if he was to return to China.”
The Applicant claims that the Tribunal failed to give him clear particulars as to why the information he had provided during the hearing would be rejected, and failed to give him the opportunity to comment on this information. This, the Applicant claims, constitutes a breach of s.424AA of the Migration Act.
The Applicant’s Submissions
The Applicant filed an outline of submissions, which does not entirely accord with the Applicant's amended application. He sets out in his submissions, three claims, which contain more than one ground.
a)First, he submits that the Tribunal assessed his credibility incorrectly, the Tribunal made its finding based on incorrect information or incorrect evidence, and the Tribunal raised incorrect issues in deciding his review application.
b)Second, the Applicant submits that the Tribunal failed to comply with its obligations under s.424AA of the Migration Act, which is the ground in his amended application.
c)Third, the Applicant submits that the Tribunal failed to comply with its obligations under s.424A(1) of the Migration Act. That claim is a variation of the Applicant's claim of a failure to comply with s.424AA of the Act by claiming that the Tribunal failed to give him particulars of the information that was the reason or part of the reason for affirming the Tribunal's decision in writing, and failed to ensure in writing that he understood why the information was relevant and failed to invite him in writing to comment on or respond to the information.
The Applicant has also made an oral submission to the Court. That oral submission related to all of the Applicant's grounds. The Applicant claimed that the Tribunal made an assessment of his credibility based on the wrong information. The Applicant claimed that the Tribunal misunderstood his claim and treated him as a financial refugee instead of a political refugee.
He referred the Court to information in his written submissions, by saying that the Tribunal had considered four pieces of information which are as follows:
·Information regarding his financial hardship.
·Information that his evidence might have been inconsistent with information from an independent source.
·Information regarding his departure from China.
·Information in relation to the fact that the Applicant gave three different versions as to how he was obtaining finance whilst in Australia.
The Applicant claimed that by failing to give him clear particulars of that information, failing to ensure that he understood why it was relevant, failing to invite him orally to comment on that information and failing to advise him that he could seek additional time to comment on or respond to the information, the Tribunal failed to comply with its obligations under s.424AA of the Migration Act.
Accordingly, the Applicant asked the Court to set aside the Tribunal decision and send his application back to the Refugee Review Tribunal. He reiterated that he was a political refugee and not a financial one.
The Respondents’ Submissions
For the Minister, Ms Sirtes of counsel submitted that the Tribunal did not misunderstand the Applicant's claim by assessing his claim as financial hardship but not his political claim. As she pointed out to the Court, the Tribunal considered both of those claims at pages 70 and 71 of the Court Book. Ms Sirtes submitted that the Tribunal did not misunderstand the Applicant's claims, but in fact dealt with them all.
Ms Sirtes further submitted that the Tribunal did not fail to comply with s.424AA of the Migration Act and did indeed offer him an opportunity to comment on certain information. She further submitted that the Applicant's claim that the Tribunal wrongly assessed his credibility could not be made out, and that the assessment of credibility was specifically a task for the administrative decision maker. She submitted that the claim for the breach of s.424A of the Migration Act had not been made out because there was no information of a type that would be caught by sub-section 424A(1) of the Act.
Considerations
Relevant Law
In dealing with all of these grounds, it is useful to start by considering the wording of s.424AA of the Migration Act. That section says:
Section 424AA - Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.”
Ground 1 – The Tribunal committed jurisdictional error by failing to comply with s.424AA of the Migration Act 1958.
The Applicant claims that unlike sub-section 424A(3) of the Migration Act, s.424AA does not seek to limit the type of information that the Tribunal must deal with by offering the Applicant an opportunity to consider. That submission or that proposition that s.424A(3)(b) exceptions do not apply to s.424AA is not engaged in the present appeal.
Counsel for the Minister has referred the Court to the decision of Driver FM in SZLXE & Anor v Minister for Immigration & Anor[4] and SZLTC v Minister for Immigration & Anor.[5] In SZLXE at [9], Driver FM cited the decision of SZBYR v Minister for Immigration where Gleeson CJ and Gummow , Callinan , Heydon, and Crennan JJ stated that:
"…The statutory criterion does not, for example, turn on "the reasoning process of the Tribunal", or "the Tribunal's published reasons". The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place… The use of the future conditional tense ("would be”) rather than the indicative strongly suggests that the operation of s.424A(1)(a) is to be determined in advance and independently - of the Tribunal's particular reasoning on the facts of the case… Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the applicant's claims to be persons to whom Australia owed protection obligations.”[6]
[4] [2008] FMCA 467
[5] [2008] FMCA 384 at [18]
[6] [2007] 235 ALR 609 at [17]
The purpose of reliance on this authority is to make the point, and I believe correctly, the Tribunal is not required to put to an applicant that it proposes to reject the applicant's evidence to the Tribunal. It is not the case, as counsel for the Minister submitted, that the Tribunal needs to restate the Applicant's own evidence to the Applicant. Obviously that would not constitute information under sub-section 424A(3)(b) of the Migration Act, and it is clearly not intended to be covered by s.424AA of the Migration Act.
The Tribunal quite clearly relied on the Applicant's own evidence and its assessment of that evidence, and Independent country information. The Tribunal found that there were inconsistencies in the Applicant's evidence. It is well established that inconsistencies in evidence do not constitute information, whether that is required to be information for the purpose of s.424A or s.424AA of the Migration Act.
The Applicant claims that he was not given the opportunity to comment on these matters. The Tribunal, however, has made it clear in the decision record that the Applicant was offered the opportunity to comment on certain aspects, even though I accept that the Applicant today has denied this fact. However, the Applicant has not produced any evidence to support his contention and the Court is left with the Tribunal decision record.
The decision record at page 72 shows that the Tribunal discussed Independent country information on the question of corruption and on the question of the systems in force in airports in China, which would make it difficult for anyone to leave the country legally if wanted by the police. The Tribunal said:
"The Tribunal asked the applicant if he wanted to comment on that information as it may cause the Tribunal to decide that he was not of interest to the authorities. The applicant's evidence is that he was only a suspect and after his friend's arrest on 15 May 2007 he asked another friend to organise his visa and he quickly organised it and got in. The Tribunal again asked the applicant if he required any further time to make submissions as above on the points which were of concern to the Tribunal. The applicant said no.”[7]
[7] See Court Book at page 72
I am not satisfied that the Applicant has made out a claim that the Tribunal in some way breached s.424AA of the Migration Act.
Ground 2 – That the Tribunal made its finding based on incorrect information.
The Applicant's claim in his written submissions that the Tribunal in some way assessed his credibility incorrectly, or make its finding based on incorrect information or incorrect evidence, or raised incorrect issues in deciding his application, has similarly not been made out.
The Tribunal's assessment of the Applicant's credibility was based on:
a) The Applicant's own evidence to the Tribunal;
b)Independent country information; and,
c)Inconsistencies within the Applicant's own evidence and inconsistencies between the applicant's evidence and independent country information.
It is well established by decisions such as Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham[8] that the assessment of credibility is a matter of fact and it is a question for the administrative decision maker, in this case, the Tribunal. So long as there is evidence upon which a credibility finding can be made, there would be no avenue for a Court conducting a judicial review to interfere.
[8] (2000) HCA 1
In this case, I am satisfied that the Applicant's own evidence and the Independent Country Information would be sufficient to allow the Tribunal to make a finding about the Applicant's credibility.
Accordingly, no jurisdictional error has been demonstrated and that claim must be dismissed.
Ground 3 – That the Tribunal failed to comply with s.424A.
I have dealt with and dismissed the Applicant's claim of a breach of s.424AA of the Migration Act. The Applicant has claimed a breach of s.424A of the Migration Act. There is no basis for such a claim. The Tribunal's decision is based on the Applicant's evidence and Independent Country Information. Both of those areas of information are excluded from the operation of s.424A(1) by s.424A(3).
The fact of an inconsistency in evidence is not of itself information. There is no breach of s.424A of the Migration Act. I am not satisfied that any breach of the Migration Act has been shown. The Applicant was invited to attend a Tribunal hearing under the provisions of s.425 of the Act. He was invited by a letter dated 15th October 2007 to attend the hearing on 20th November 2007. Clearly, he was allowed more than sufficient time to attend.
The Applicant attended the hearing. He was provided with the services of an interpreter in the Mandarin language. He has made no claims of any difficulty with interpretation and indeed the Tribunal noted:
"The applicant confirmed that he had no problems with the interpreter.”[9]
[9] See Court Book at page 70.
The matters dealt with by the Tribunal at the hearing related to the overall credibility of the Applicant's claim, whether or not he had made out his case. It was that issue that the delegate of the Minister also considered when rejecting the Applicant's claim. In other words, the Applicant was not taken by surprise, there was no new issue raised, there was no finding that would cause the Court any concern in dealing with any matters raised by the High Court of Australia in SZBEL v Minister for Immigration & Multicultural Affairs[10].
[10] [2006] HCA 63
Conclusion
I am satisfied there is no arguable case for jurisdictional error. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by sub-section 474(2) of the Migration Act.
Accordingly, as it is a privative clause decision, it is not subject to orders in the nature of certiorari or mandamus. It must follow that the application will be dismissed.
I am satisfied that this is a matter for an order for costs in favour of the Minister. I am satisfied that the amount of $4,700.00, which I understand to be inclusive of counsel's fees, is an appropriate figure in the circumstances.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 11 June 2008
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